Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Jorge.Cancio@bakom.admin.ch Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment
I would support this wholeheartedly. On 28/09/17 13:21, Jorge.Cancio@bakom.admin.ch wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, I do not see the problem with including a statement such as this. Perhaps I would indicate that it was a not for profit business instead of a business and would insert an "as appropriate" after "as a useful guide". But I think mentioning this among the international instruments is a good idea. avri On 28-Sep-17 08:21, Jorge.Cancio@bakom.admin.ch wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
* *
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 On Thu, Sep 28, 2017 at 12:28 PM, avri doria <avri@apc.org> wrote:
Hi,
I do not see the problem with including a statement such as this.
Perhaps I would indicate that it was a not for profit business instead of a business and would insert an "as appropriate" after "as a useful guide".
But I think mentioning this among the international instruments is a good idea.
avri
On 28-Sep-17 08:21, Jorge.Cancio@bakom.admin.ch wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
* *
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 ..avri doria's 's comment. And I also have to note Mathew's view. rd On Sep 28, 2017 11:28 AM, "avri doria" <avri@apc.org> wrote:
Hi,
I do not see the problem with including a statement such as this.
Perhaps I would indicate that it was a not for profit business instead of a business and would insert an "as appropriate" after "as a useful guide".
But I think mentioning this among the international instruments is a good idea.
avri
On 28-Sep-17 08:21, Jorge.Cancio@bakom.admin.ch wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-
community@icann.org
*Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
* *
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicCom ments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions- 20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017- Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport- TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
From a human rights perspective it really doesn't matter that whether a business is not-for-profit or not. Qualifying it in this way is mealy-mouthed. Especially as it has no legal or other effect Some really terrible human rights abuses have been committed by non-profit orgnaisations. Even the UN. See http://www.aljazeera.com/indepth/features/2017/07/stop-peacekeeper-abuse-170... ICANN either supports and promotes international standards of human rights or it doesn't. Which is it? Nigel On 28/09/17 16:28, avri doria wrote:
Hi, From a human rights perspective it really doesn't matter that whethe a business is not-for-profit or not. Qualifying it in this way is mealy-mouthed.
Especially as it has no legal or other effect Some really terrible human rights abuses have been committed by non-profit orgnaisations. Even the UN. See http://www.aljazeera.com/indepth/features/2017/07/stop-peacekeeper-abuse-170... ICANN either supports and promotes international standards of human rights or it doesn't. Which is it? Nigel
I do not see the problem with including a statement such as this.
Perhaps I would indicate that it was a not for profit business instead of a business and would insert an "as appropriate" after "as a useful guide".
But I think mentioning this among the international instruments is a good idea.
avri
On 28-Sep-17 08:21, Jorge.Cancio@bakom.admin.ch wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
* *
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Whether ICANN is non-profit or not is beside the point. That is not the issue. This is also not a binary issue. In the US, the Republicans tried to make their attempts at dismantling "Obamacare" into a binary issue -- "Either you support repealing and replacing Obamacare or you support socialism." It didn't work (footnote: a lot of Americans are really scared of socialism....) Making it into a binary issue is fine rhetoric but it gets us nowhere. Trying to put a heightened commitment to the UNGP into this document is not a question of "supporting and promoting international standards of human rights" or not. Nor does that help resolve the concerns that brought us to the position that some would like to change. Greg On Fri, Sep 29, 2017 at 1:29 AM, Nigel Roberts <nigel@channelisles.net> wrote:
From a human rights perspective it really doesn't matter that whether a business is not-for-profit or not. Qualifying it in this way is mealy-mouthed.
Especially as it has no legal or other effect
Some really terrible human rights abuses have been committed by non-profit orgnaisations. Even the UN.
See http://www.aljazeera.com/indepth/features/2017/07/stop-peace keeper-abuse-170730125107601.html
ICANN either supports and promotes international standards of human rights or it doesn't.
Which is it?
Nigel
On 28/09/17 16:28, avri doria wrote:
Hi, From a human rights perspective it really doesn't matter that whethe a business is not-for-profit or not. Qualifying it in this way is mealy-mouthed.
Especially as it has no legal or other effect
Some really terrible human rights abuses have been committed by non-profit orgnaisations. Even the UN.
See http://www.aljazeera.com/indepth/features/2017/07/stop-peace keeper-abuse-170730125107601.html
ICANN either supports and promotes international standards of human rights or it doesn't.
Which is it?
Nigel
I do not see the problem with including a statement such as this.
Perhaps I would indicate that it was a not for profit business instead of a business and would insert an "as appropriate" after "as a useful guide".
But I think mentioning this among the international instruments is a good idea.
avri
On 28-Sep-17 08:21, Jorge.Cancio@bakom.admin.ch wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community @icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
* *
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublic Comments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions- 20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation- May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final ( attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter -20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 29/09/17 07:23, Greg Shatan wrote:
Whether ICANN is non-profit or not is beside the point. That is not the issue. Agreed. It is entirely beside the point and has no place in any statement as if it did.
Hi, I disagree. It is one of the factors that makes certain parts of the Guidelines less appropriate for ICANN than for GE. One of the things several of us attempted during the long course of the subgroup, before the matter was referred to the plenary, was to get Ruggie to to produce an explanatory version specific for Not-for-profit as he has done for other groups. So my two recommended edits, i.e inclusion of the "not-for-profit" modifier and the phrase "as appropriate" were in recognition of this being the case. avri On 29-Sep-17 03:23, Nigel Roberts wrote:
On 29/09/17 07:23, Greg Shatan wrote:
Whether ICANN is non-profit or not is beside the point. That is not the issue. Agreed. It is entirely beside the point and has no place in any statement as if it did.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Avri, Thanks for your explanation. I understand where you and Nigel are each coming from now. I agree with your points regarding non-profits and Ruggie. Reading Nigel's email, I thought he was advancing the strawman that the only reason Ruggie is a bad fit for ICANN is that it's a non-profit. My goal was to point out that ICANN's unique role makes it unlike a business at all (non-profit or for-profit), and that this is the primary reason Ruggie doesn't fit. But I agree that the nonprofit status poses additional challenges. Finally, none of this is to say that Ruggie should not be considered in the implementation of the Human Rights Core Value -- which is already supported in the Considerations portion of the document. It is to say that Ruggie should not be used to interpret the meaning of the Bylaw itself. Greg On Fri, Sep 29, 2017 at 1:30 PM avri doria <avri@apc.org> wrote:
Hi,
I disagree. It is one of the factors that makes certain parts of the Guidelines less appropriate for ICANN than for GE. One of the things several of us attempted during the long course of the subgroup, before the matter was referred to the plenary, was to get Ruggie to to produce an explanatory version specific for Not-for-profit as he has done for other groups.
So my two recommended edits, i.e inclusion of the "not-for-profit" modifier and the phrase "as appropriate" were in recognition of this being the case.
avri
On 29-Sep-17 03:23, Nigel Roberts wrote:
On 29/09/17 07:23, Greg Shatan wrote:
Whether ICANN is non-profit or not is beside the point. That is not the issue. Agreed. It is entirely beside the point and has no place in any statement as if it did.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, My only other point, and the reason I threw in with the proposed edit is because it is important that in be listed among the international legal instruments that may pertain. On the imperfect fit issue: which of these international instruments fits ICANN exactly? And while I subscribe to the notion of ICANN exceptionalism as a multistakeholder organization as much as anyone, I do not believe that the Organization and its operations and governance is fundamentally different. thanks avri On 29-Sep-17 14:18, Greg Shatan wrote:
Avri,
Thanks for your explanation. I understand where you and Nigel are each coming from now.
I agree with your points regarding non-profits and Ruggie.
Reading Nigel's email, I thought he was advancing the strawman that the only reason Ruggie is a bad fit for ICANN is that it's a non-profit. My goal was to point out that ICANN's unique role makes it unlike a business at all (non-profit or for-profit), and that this is the primary reason Ruggie doesn't fit.
But I agree that the nonprofit status poses additional challenges.
Finally, none of this is to say that Ruggie should not be considered in the implementation of the Human Rights Core Value -- which is already supported in the Considerations portion of the document.
It is to say that Ruggie should not be used to interpret the meaning of the Bylaw itself.
Greg
On Fri, Sep 29, 2017 at 1:30 PM avri doria <avri@apc.org <mailto:avri@apc.org>> wrote:
Hi,
I disagree. It is one of the factors that makes certain parts of the Guidelines less appropriate for ICANN than for GE. One of the things several of us attempted during the long course of the subgroup, before the matter was referred to the plenary, was to get Ruggie to to produce an explanatory version specific for Not-for-profit as he has done for other groups.
So my two recommended edits, i.e inclusion of the "not-for-profit" modifier and the phrase "as appropriate" were in recognition of this being the case.
avri
On 29-Sep-17 03:23, Nigel Roberts wrote: > > > On 29/09/17 07:23, Greg Shatan wrote: >> Whether ICANN is non-profit or not is beside the point. That is not >> the issue. > Agreed. It is entirely beside the point and has no place in any > statement as if it did. > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Jorge, Thank you for your proposal, which I fully support to be included in the HR-FOI document. Best, Finn Sendt fra min iPad Den 28. sep. 2017 kl. 14.21 skrev "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment <CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927.pdf> <20170616 Swiss comments to Framework of Interpretation final.pdf> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Jorge, we support your proposal to be included in the HR-FoI document. Best regards Olga 2017-09-28 13:34 GMT-03:00 Finn Petersen <FinPet@erst.dk>:
Dear Jorge,
Thank you for your proposal, which I fully support to be included in the HR-FOI document.
Best,
Finn
Sendt fra min iPad
Den 28. sep. 2017 kl. 14.21 skrev "Jorge.Cancio@bakom.admin.ch" < Jorge.Cancio@bakom.admin.ch>:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, *that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard*. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to *suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made* – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would *suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call*.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time *the UN CSTD Working Group on Enhanced Cooperation*. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross- community@icann.org> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1. Review timeline.
3.2. Reminder of 27 October face to face in Abu Dhabi.
3.3. Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
- CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
- CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
- CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) - CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
- CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) - CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10. First reading of the draft recommendation of the Staff Accountability sub-group.
- CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) - CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11. AOB
12. Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13. Adjournment
<CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927.pdf>
<20170616 Swiss comments to Framework of Interpretation final.pdf>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Jorge, Thank you for your continuing efforts to find agreeable middle ground. And I also thank all those who have expressed views so far – Avri, Matthew, Renata, Finn, Olga, and Brett. I have considered them all. I remain concerned about the notion of using “should” rather than “could.” And that concern is that we will leave this language to an untested, unknown, and, at present, unknowable IRP panel with power to set precedent. To me, the Ruggie Principles are a wonderful development - but they don’t take account of ICANN’s unique role. If applied, they say to ICANN “If you have leverage use it” on anyone linked to ICANN’s operations, products or services. I used to be a corporate lawyer and I know how lawyers can interpret “should consider” – it can be seen as an injunction to act. I recommend that we stick with the language as drafted by the subgroup – and hope that in future, as the panel becomes aware of ICANN’s uniqueness, we can do more. Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jorge.Cancio@bakom.admin.ch Sent: Thursday, September 28, 2017 8:21 AM To: turcotte.bernard@gmail.com; accountability-cross-community@icann.org Subject: [EXTERNAL] Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment
And I have seen the exact same lawyers use 'may' as an excuse for inaction which it is clearly warranted. On 28/09/17 18:49, McAuley, David via Accountability-Cross-Community wrote:
Dear Jorge,
Thank you for your continuing efforts to find agreeable middle ground. And I also thank all those who have expressed views so far – Avri, Matthew, Renata, Finn, Olga, and Brett. I have considered them all.
I remain concerned about the notion of using “should” rather than “could.” And that concern is that we will leave this language to an untested, unknown, and, at present, unknowable IRP panel with power to set precedent.
To me, the Ruggie Principles are a wonderful development - but they don’t take account of ICANN’s unique role. If applied, they say to ICANN “If you have leverage use it” on anyone linked to ICANN’s operations, products or services.
I used to be a corporate lawyer and I know how lawyers can interpret “should consider” – it can be seen as an injunction to act. I recommend that we stick with the language as drafted by the subgroup – and hope that in future, as the panel becomes aware of ICANN’s uniqueness, we can do more.
Best regards,
David
David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch *Sent:* Thursday, September 28, 2017 8:21 AM *To:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Subject:* [EXTERNAL] Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during *implementation* of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, *that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard*. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to *suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made* – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would *suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call*.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time *the UN CSTD Working Group on Enhanced Cooperation*. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-communit y@icann.org> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1. Review timeline.
3.2. Reminder of 27 October face to face in Abu Dhabi.
3.3. Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
- CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
- CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
- CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) - CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
- CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) - CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10. First reading of the draft recommendation of the Staff Accountability sub-group.
- CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) - CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11. AOB
12. Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13. Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to _all of ICANN in general_. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose _only refers to ICANN “Organization”_ and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:*Greg Shatan [mailto:gregshatanipc@gmail.com] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during _implementation_ of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com
Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com>
As noted on today's call, it is perhaps more illuminating to consider the suggested change in the context of the entire section interpreting the Core Value phrase "internationally recognized human rights": There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“* The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Best regards, Greg On Thu, Sep 28, 2017 at 5:07 PM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:* Paul Twomey [mailto:paul.twomey@argopacific.com] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org
*Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to *all of ICANN in general*. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose *only refers to ICANN “Organization”* and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:* Greg Shatan [mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during *implementation* of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, *that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard*. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to *suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made* – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would *suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call*.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time *the UN CSTD Working Group on Enhanced Cooperation*. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross- community@icann.org> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1. Review timeline.
3.2. Reminder of 27 October face to face in Abu Dhabi.
3.3. Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
- CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
- CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
- CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) - CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
- CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) - CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10. First reading of the draft recommendation of the Staff Accountability sub-group.
- CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) - CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11. AOB
12. Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13. Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
Dr Paul Twomey
Managing Director
Argo P@cific
US Cell: +1 310 279 2366 <(310)%20279-2366>
Aust M: +61 416 238 501 <+61%20416%20238%20501>
www.argopacific.com
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen.Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission.By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:*Paul Twomey [mailto:paul.twomey@argopacific.com] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to _all of ICANN in general_. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose _only refers to ICANN “Organization”_ and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:*Greg Shatan [mailto:gregshatanipc@gmail.com] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during _implementation_ of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com <http://www.argopacific.com>
-- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com
Perhaps Jorge's point is that none of that involves ICANN's activities "as a business." Then the question becomes what part of ICANN's activities are part of the "business" and which are part of its sui generis role as coordinator, and thus beyond the intended scope of the requested change? I agree that ccTLD relations generally are on the coordinator side. The SO/ACs are all clearly on the coordinator side as well. Registry agreements and relationships? Well, they are contracts with business entities. But it still seems to fit with the coordinator role quite comfortably. Registrar agreements and relationships? Same. New gTLD applications? Same. How about choosing where to have ICANN meetings? That seems pretty business-like, but then again the meetings are held as part of the coordinator role. Also, the community recently debated whether to heighten human rights concerns in connection with meeting venues and the result (if I recall) were to make no change. So, coordinator again. Choosing where to have ICANN offices (both the location and the landlord)? Even more business-like. Should ICANN not have offices in states with a bad human rights track record? One could have that discussion. One could avoid the dilemma by saying that this is part of the coordinator role, and that office location is a form of global outreach. On the other hand, it's just a real estate deal.... Is this the "break point" where ICANN needs to "consider" whether locating their next office in Country X violates the Bylaws? (After all, that's what's at stake if this is in the FoI portion of the document.) Vendor relations? We might have to parse that. Captioning service = coordination. Office cleaning = business. Catering = do we need to look at the subject matter of the meeting to see if it's coordination or business? Break Room Supplies = might be "business, " but does it matter who's drinking the coffee? What if a stakeholder visits the office in their SO/AC role and has a cup of coffee? Rest Room Supplies = business-related (in more ways than one); but is the analysis that different from those above? Employees? Maybe. Do we separate policy employees from other employees? Do we separate policy contractors from policy employees? Do we parse the org chart? Do we parse Goran? What is absolutely, unquestionably "business" and not "coordination"? Apologies for having so many questions and so few answers. Best regards, Greg On Thu, Sep 28, 2017 at 5:40 PM, Paul Twomey <paul.twomey@argopacific.com> wrote:
Thanks Jorge
At this late stage let me be somewhat blunt to be clear.
The sort of language in the Ruggie Principles which worry me is:
13. The responsibility to respect human rights requires that business enterprises: …
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions.
Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD.
Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge.
I hope this helps
Paul
On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:* Paul Twomey [mailto:paul.twomey@argopacific.com <paul.twomey@argopacific.com>] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to *all of ICANN in general*. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose *only refers to ICANN “Organization”* and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:* Greg Shatan [mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during *implementation* of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, *that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard*. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to *suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made* – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would *suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call*.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time *the UN CSTD Working Group on Enhanced Cooperation*. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross- community@icann.org> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1. Review timeline.
3.2. Reminder of 27 October face to face in Abu Dhabi.
3.3. Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
- CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
- CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
- CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) - CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
- CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) - CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10. First reading of the draft recommendation of the Staff Accountability sub-group.
- CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) - CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11. AOB
12. Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13. Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
Dr Paul Twomey
Managing Director
Argo P@cific
US Cell: +1 310 279 2366 <(310)%20279-2366>
Aust M: +61 416 238 501 <+61%20416%20238%20501>
www.argopacific.com
-- Dr Paul Twomey Managing Director Argo P@cific
US Cell: +1 310 279 2366 <(310)%20279-2366> Aust M: +61 416 238 501 <+61%20416%20238%20501> www.argopacific.com
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Greg I agree that these sorts of gradations are worthy of working through from an ICANN insider perspective. I worry that an uneducated US District court judge may not get them. So we either make them very specific or at this stage stick with the original language and not open this can of worms. Paul On 9/28/17 6:06 PM, Greg Shatan wrote:
Perhaps Jorge's point is that none of that involves ICANN's activities "as a business." Then the question becomes what part of ICANN's activities are part of the "business" and which are part of its sui generis role as coordinator, and thus beyond the intended scope of the requested change?
I agree that ccTLD relations generally are on the coordinator side. The SO/ACs are all clearly on the coordinator side as well. Registry agreements and relationships? Well, they are contracts with business entities. But it still seems to fit with the coordinator role quite comfortably. Registrar agreements and relationships? Same. New gTLD applications? Same.
How about choosing where to have ICANN meetings? That seems pretty business-like, but then again the meetings are held as part of the coordinator role. Also, the community recently debated whether to heighten human rights concerns in connection with meeting venues and the result (if I recall) were to make no change. So, coordinator again.
Choosing where to have ICANN offices (both the location and the landlord)? Even more business-like. Should ICANN not have offices in states with a bad human rights track record? One could have that discussion. One could avoid the dilemma by saying that this is part of the coordinator role, and that office location is a form of global outreach. On the other hand, it's just a real estate deal.... Is this the "break point" where ICANN needs to "consider" whether locating their next office in Country X violates the Bylaws? (After all, that's what's at stake if this is in the FoI portion of the document.)
Vendor relations? We might have to parse that. Captioning service = coordination. Office cleaning = business. Catering = do we need to look at the subject matter of the meeting to see if it's coordination or business? Break Room Supplies = might be "business, " but does it matter who's drinking the coffee? What if a stakeholder visits the office in their SO/AC role and has a cup of coffee? Rest Room Supplies = business-related (in more ways than one); but is the analysis that different from those above?
Employees? Maybe. Do we separate policy employees from other employees? Do we separate policy contractors from policy employees? Do we parse the org chart? Do we parse Goran?
What is absolutely, unquestionably "business" and not "coordination"?
Apologies for having so many questions and so few answers.
Best regards,
Greg
On Thu, Sep 28, 2017 at 5:40 PM, Paul Twomey <paul.twomey@argopacific.com <mailto:paul.twomey@argopacific.com>> wrote:
Thanks Jorge
At this late stage let me be somewhat blunt to be clear.
The sort of language in the Ruggie Principles which worry me is:
13. The responsibility to respect human rights requires that business enterprises: …
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions.
Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en <https://www.icann.org/resources/pages/cctlds/cctlds-en>) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen.Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission.By definition, it has to be able to serve every ccTLD.
Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge.
I hope this helps
Paul
On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:*Paul Twomey [mailto:paul.twomey@argopacific.com <mailto:paul.twomey@argopacific.com>] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to _all of ICANN in general_. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose _only refers to ICANN “Organization”_ and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:*Greg Shatan [mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during _implementation_ of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
-- Dr Paul Twomey Managing Director Argo P@cific
US Cell:+1 310 279 2366 <tel:%28310%29%20279-2366> Aust M:+61 416 238 501 <tel:+61%20416%20238%20501>
www.argopacific.com <http://www.argopacific.com>
-- Dr Paul Twomey Managing Director Argo P@cific
US Cell:+1 310 279 2366 <tel:%28310%29%20279-2366> Aust M:+61 416 238 501 <tel:+61%20416%20238%20501>
www.argopacific.com <http://www.argopacific.com>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
-- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com
Paul It's clearly a nonsense for ICANN to reject internationally accepted human rights principles by rejecting Ruggie whilst at the same time accepting OFAC (becuase it's 'applicable law') - the effects on a neutral internet being much more severe. I personally accept that ICANN must negotiate the waters around OFAC as a price of doing business from the chosen jurisdiction (California) since the choice-of-jurisdiction ship sailed a long time ago. But, as I've repeatedly said, construing applicable law to mean only the laws that California and the Federal Government pass, is to make the whole humnan rights bylaw a nullity. Under this construcion, ICANN does not even have an obligation to fair hearing! But if David is right, and IRP forms binding precedent, then the .XXX case provides an alternative view, which I find preferable. On 28/09/17 22:40, Paul Twomey wrote:
Thanks Jorge
At this late stage let me be somewhat blunt to be clear.
The sort of language in the Ruggie Principles which worry me is:
13. The responsibility to respect human rights requires that business enterprises: …
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions.
Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen.Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission.By definition, it has to be able to serve every ccTLD.
Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge.
I hope this helps
Paul
On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:*Paul Twomey [mailto:paul.twomey@argopacific.com] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to _all of ICANN in general_. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose _only refers to ICANN “Organization”_ and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:*Greg Shatan [mailto:gregshatanipc@gmail.com] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during _implementation_ of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Dr Paul Twomey Managing Director Argo P@cific
US Cell: +1 310 279 2366 Aust M: +61 416 238 501
www.argopacific.com <http://www.argopacific.com>
-- Dr Paul Twomey Managing Director Argo P@cific
US Cell: +1 310 279 2366 Aust M: +61 416 238 501
www.argopacific.com
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Paul, and dear all, Paul, thank you for your clarity. However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns. But now we are at the beginning of the end of work stream 2. The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures: (1) it configures the HR clause as a “core value”; (2) the core value is just guiding; (3) it is subject to the core value balancing test; (4) core values yield to what is established in the commitments; (5) the core value has to be applied strictly within the Mission of ICANN; (6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc. Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission. Here is the Core Value text again for the convenience of all: “Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.” The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value. It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. As to these two sentences that I have proposed, they make two things: · First, there is a mention, amongst the international instruments, of the UNGP: “The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument. · Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” when applying the core value. Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Thanks all for your consideration and kind regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org Betreff: Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com>
Dear Jorge Thank you for your detail and clarity as well. I understand the intent of the separation of the SOs etc from other functions of ICANN. I just am not sure that "business" is the right way to describe the other functions - so many of those functions are closer to global public good functions rather than "business" - certainly business as understood in the Ruggie Principles. As I think further about the risks I am concerned about, I would agree with Greg Shatan's observation: "Finally, none of this is to say that Ruggie should not be considered in the implementation of the Human Rights Core Value -- which is already supported in the Considerations portion of the document. It is to say that Ruggie should not be used to interpret the meaning of the Bylaw itself." I will leave it to other to consider whether my comments helps us resolve your language as it stands. I am not trying to be disrespectul of your efforts or the comments by the three government. I am just very skeptical about how uninformed judges interpret such language. Best Paul On 9/29/17 5:41 AM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Paul, and dear all,
Paul, thank you for your clarity.
However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns.
But now we are at the beginning of the end of work stream 2.
The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures:
(1) it configures the HR clause as a “core value”;
(2) the core value is just guiding;
(3) it is subject to the core value balancing test;
(4) core values yield to what is established in the commitments;
(5) the core value has to be applied strictly within the Mission of ICANN;
(6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc.
Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission.
Here is the Core Value text again for the convenience of all:
/“//Subject to the limitations set forth in _Section 27.2_, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.”/
The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value.
It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to _all of_ ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs.
As to these two sentences that I have proposed, they make two things:
·First, there is a mention, amongst the international instruments, of the UNGP: “*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” /* As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument.
·Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “*/Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“ *This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “_consider_” the UNGP “_as a useful guide_” when applying the core value.
Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Thanks all for your consideration and kind regards
Jorge
*Von:*Paul Twomey [mailto:paul.twomey@argopacific.com] *Gesendet:* Donnerstag, 28. September 2017 23:41 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Thanks Jorge
At this late stage let me be somewhat blunt to be clear.
The sort of language in the Ruggie Principles which worry me is:
13. The responsibility to respect human rights requires that business enterprises: …
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions.
Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD.
Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge.
I hope this helps
Paul
On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:*Paul Twomey [mailto:paul.twomey@argopacific.com] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to _all of ICANN in general_. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose _only refers to ICANN “Organization”_ and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:*Greg Shatan [mailto:gregshatanipc@gmail.com] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <mailto:Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during _implementation_ of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“/By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation*. */
*/The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value./**“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>[mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, _that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard_. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to _suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made_ – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would _suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call_.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time /the UN CSTD Working Group on Enhanced Cooperation/. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>[mailto:accountability-cross-community-bounces@icann.org] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
**
1.Introduction, update to SOIs, reminder on standards of behavior
2.Review of Agenda
3.Administration
3.1.Review timeline.
3.2.Reminder of 27 October face to face in Abu Dhabi.
3.3.Reminder of High Interest sessions in Abu Dhabi
4.Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2.Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5.Point on Quorum (held over from last plenary)
6.Second Reading of the draft recommendations of the Diversity sub-group.
o CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7.First reading of the final recommendations of the SOAC Accountability sub-group.
o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8.First reading of the final recommendations of the Human Rights sub-group.
o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) o CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9.First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10.First reading of the draft recommendation of the Staff Accountability sub-group.
o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) o CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11.AOB
12.Next Plenaries
12.1.Thursday 28 September 19:00UTC
12.2.Wednesday 4 October 0500 UTC (optional but please schedule)
12.3.Wednesday 11 October 1300 UTC (optional but please schedule)
12.4.Wednesday 18 October 1900UTC
13.Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
Dr Paul Twomey
Managing Director
Argo P@cific
US Cell: +1 310 279 2366
Aust M: +61 416 238 501
www.argopacific.com <http://www.argopacific.com>
-- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com <http://www.argopacific.com>
-- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com
Dear all, Resending again in view of tomorrow’s discussions. Please see below my message from 29 September week where I give some additional context on the proposal circulated to the CCWG (see further below my Email from Sept. 28) intended to bridge the difference between the dissent and the HR-Subgroup proposal. I would very much appreciate a discussion on the specific text being proposed in a spirit of compromise. kind regards Jorge Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Jorge.Cancio@bakom.admin.ch Gesendet: Freitag, 29. September 2017 11:42 An: paul.twomey@argopacific.com; turcotte.bernard@gmail.com; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Paul, and dear all, Paul, thank you for your clarity. However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns. But now we are at the beginning of the end of work stream 2. The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures: (1) it configures the HR clause as a “core value”; (2) the core value is just guiding; (3) it is subject to the core value balancing test; (4) core values yield to what is established in the commitments; (5) the core value has to be applied strictly within the Mission of ICANN; (6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc. Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission. Here is the Core Value text again for the convenience of all: “Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.” The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value. It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. As to these two sentences that I have proposed, they make two things: · First, there is a mention, amongst the international instruments, of the UNGP: “The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument. · Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” when applying the core value. Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Thanks all for your consideration and kind regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com>
All, I'm not sure where this stands procedurally, as we are between first and second readings of the Human Rights Subgroup's report. Putting that concern aside, I thought it could be fruitful to respond to this proposal in the same spirit of compromise. If an acceptable resolution can be found, that would presumably resolve the "dissent" in the Subgroup Report, allowing the CCWG Draft Report to be circulated for public comment without a minority report. In considering this proposal, I believe that Jorge's suggested language would fit much more naturally into the section of the "Considerations" text where the Ruggie Principles are already discussed. That would avoid the appearance of contradictions between the FoI and the Considerations, and/or the need to insert qualifiers into the FoI to resolve any apparent contradictions. Therefore, I suggest that a revision to the Report, by taking Jorge's second sentence (slightly revised and rearranged) and placing it in this section of the Considerations text, where it will be read in the context of the existing Ruggie discussion. In this context, the first sentence (which is not really substantive) is no longer necessary. The revision would read as follows (new text in red). With regards to the UN Guiding Principles for Business and Human Rights <https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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 <https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities. For your convenience, Jorge's original suggestion was: The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value. I hope this is a useful idea, which could broaden the consensus around the entirety of the Human Rights Subgroup Report. Greg On Tue, Oct 10, 2017 at 10:35 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear all,
Resending again in view of tomorrow’s discussions.
Please see below my message from 29 September week where I give some additional context on the proposal circulated to the CCWG (see further below my Email from Sept. 28) intended to bridge the difference between the dissent and the HR-Subgroup proposal.
I would very much appreciate a discussion on the specific text being proposed in a spirit of compromise.
kind regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Freitag, 29. September 2017 11:42 *An:* paul.twomey@argopacific.com; turcotte.bernard@gmail.com; accountability-cross-community@icann.org
*Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Paul, and dear all,
Paul, thank you for your clarity.
However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns.
But now we are at the beginning of the end of work stream 2.
The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures:
(1) it configures the HR clause as a “core value”;
(2) the core value is just guiding;
(3) it is subject to the core value balancing test;
(4) core values yield to what is established in the commitments;
(5) the core value has to be applied strictly within the Mission of ICANN;
(6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc.
Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission.
Here is the Core Value text again for the convenience of all:
*“**Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.”*
The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value.
It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to *all of* ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs.
As to these two sentences that I have proposed, they make two things:
· First, there is a mention, amongst the international instruments, of the UNGP: “*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” * As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument.
· Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “*Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.**“ *This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “*consider*” the UNGP “*as a useful guide*” when applying the core value.
Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Thanks all for your consideration and kind regards
Jorge
*Von:* Paul Twomey [mailto:paul.twomey@argopacific.com <paul.twomey@argopacific.com>] *Gesendet:* Donnerstag, 28. September 2017 23:41 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Thanks Jorge
At this late stage let me be somewhat blunt to be clear.
The sort of language in the Ruggie Principles which worry me is:
13. The responsibility to respect human rights requires that business enterprises: …
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions.
Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD.
Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge.
I hope this helps
Paul
On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Paul,
I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text.
For your convenience, here is again the proposed change in red:
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
Thanks for your help in understanding your position.
Regards
Jorge
*Von:* Paul Twomey [mailto:paul.twomey@argopacific.com <paul.twomey@argopacific.com>] *Gesendet:* Donnerstag, 28. September 2017 23:00 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Dear Jorge
I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all.
Paul
On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch wrote:
Dear Greg, dear all,
The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense.
There is no contradiction with the “considerations”, as those refer to the application of the UNGP to *all of ICANN in general*. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose *only refers to ICANN “Organization”* and not to SO/ACs.
This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants.
Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs.
Kind regards
Jorge
*Von:* Greg Shatan [mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>] *Gesendet:* Donnerstag, 28. September 2017 22:12 *An:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> *Cc:* Bernard Turcotte <turcotte.bernard@gmail.com> <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Unfortunately, I cannot support this suggestion.
First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw":
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.
The suggested language absolutely contradicts the conclusion that "
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.
" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during *implementation* of the Bylaw.
With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report.
Second, this is being inserted into the interpretation of the term
"internationally recognized human rights
"
as stated in the Core Value.
This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis.
Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition:
There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation.
The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN.
Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well.
Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions.
Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report.
On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch> wrote:
Dear all,
Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup.
Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red):
“*By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. *
*The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.* *“*
The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention.
I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent.
Best regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *Im Auftrag von * Jorge.Cancio@bakom.admin.ch *Gesendet:* Montag, 25. September 2017 15:34 *An:* turcotte.bernard@gmail.com; accountability-cross-community@icann.org *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
Dear all,
Regarding *agenda point 8* and specifically the *dissenting opinion* attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this.
The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles).
However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, *that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard*. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.
Therefore, I would like to *suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made* – a broader consensus that could be more inclusive of all views expressed during the public comment period.
Hence, I would *suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call*.
I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback.
For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time *the UN CSTD Working Group on Enhanced Cooperation*. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible.
Kind regards
Jorge
*Von:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *Im Auftrag von *Bernard Turcotte *Gesendet:* Donnerstag, 21. September 2017 18:05 *An:* Accountability Cross Community <accountability-cross- community@icann.org> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2
All,
Please fins below and attached the agenda for the 27-28 September plenary.
As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands).
Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants.
Please do not hesitate to contact me if you have any questions or problems with the documents.
Bernard Turcotte
ICANN Staff Support to the CCWG-Accountability-WS2
*Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
1. Introduction, update to SOIs, reminder on standards of behavior
2. Review of Agenda
3. Administration
3.1. Review timeline.
3.2. Reminder of 27 October face to face in Abu Dhabi.
3.3. Reminder of High Interest sessions in Abu Dhabi
4. Legal Committee Update
4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs).
4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group.
5. Point on Quorum (held over from last plenary)
6. Second Reading of the draft recommendations of the Diversity sub-group.
- CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary)
7. First reading of the final recommendations of the SOAC Accountability sub-group.
- CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) - CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached)
8. First reading of the final recommendations of the Human Rights sub-group.
- CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) - CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached)
9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues)
- CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) - CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email)
10. First reading of the draft recommendation of the Staff Accountability sub-group.
- CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) - CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email)
11. AOB
12. Next Plenaries
12.1. Thursday 28 September 19:00UTC
12.2. Wednesday 4 October 0500 UTC (optional but please schedule)
12.3. Wednesday 11 October 1300 UTC (optional but please schedule)
12.4. Wednesday 18 October 1900UTC
13. Adjournment
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
Dr Paul Twomey
Managing Director
Argo P@cific
US Cell: +1 310 279 2366 <(310)%20279-2366>
Aust M: +61 416 238 501 <+61%20416%20238%20501>
www.argopacific.com
--
Dr Paul Twomey
Managing Director
Argo P@cific
US Cell: +1 310 279 2366 <(310)%20279-2366>
Aust M: +61 416 238 501 <+61%20416%20238%20501>
www.argopacific.com
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Greg and all, I really appreciate very much this effort to bridge our differences also from Greg’s side. For your convenience here are again my suggested initial compromise proposal and Greg’s: (1) My original proposal, to include under section “internationally recognized human rights” of the FoI (page 6 in the attached document) the following changes in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ (1) Greg’s proposal, include red text under the “Considerations”: “With regards to the UN Guiding Principles for Business and Human Rights<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities.” We could endlessly discuss whether the FoI itself or the “Considerations” are the right place for the second sentence I had proposed (my original second sentence: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.”), but if placing it in the FoI itself is a no-go for Greg and others I would be in a position to accept this in a spirit of reaching a minimum agreement. I may also accept that Greg’s proposed text replaces a “should” by a “could” and that it also limits my general reference to the UNGP to a reference to “certain aspects”. I even may go with the introductory wording of Greg’s formulation, that may be construed as implying that ICANN Organization is not always a business (“To the extent that ICANN the Organization is a business”). However, in order to make this a more balanced compromise proposal I feel that the first sentence I proposed (“The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.”) should be maintained in the FoI under the international instruments that are being mentioned. As explained before this is just a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – so it is a relevant instrument. As an alternative, I could also live with a solution where the reference to the UNGP would be included in the footnote 3 on page 6 of the pdf attached, as follows: “3 Including, but not limited to: · Universal Declaration of Human Rights · International Covenant on Civil and Political Rights · International Covenant on Economic, Social and Cultural Rights · International Convention on Elimination of All Forms of Racial Discrimination · Convention on the Elimination of all Forms of Discrimination Against Women · Convention on the Rights of Persons with Disabilities · UN Declaration on the Rights of Indigenous Peoples · ILO’s Declaration on Fundamental Principles and Rights at Work (applicable to ICANN’s employees and workers) · The UN Guiding Principles on Businesses and Human Rights” Again, all this is being said with the caveat of this being my personal opinion (other members supporting the dissent may disagree and I will have to go back to other ministries later on down the road), but if the above conditions are met, I feel we could have a slightly broader consensus on the table. Thanks for your consideration and Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Mittwoch, 11. Oktober 2017 00:35 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com>; accountability-cross-community@icann.org; <ws2-hr@icann.org> <ws2-hr@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences All, I'm not sure where this stands procedurally, as we are between first and second readings of the Human Rights Subgroup's report. Putting that concern aside, I thought it could be fruitful to respond to this proposal in the same spirit of compromise. If an acceptable resolution can be found, that would presumably resolve the "dissent" in the Subgroup Report, allowing the CCWG Draft Report to be circulated for public comment without a minority report. In considering this proposal, I believe that Jorge's suggested language would fit much more naturally into the section of the "Considerations" text where the Ruggie Principles are already discussed. That would avoid the appearance of contradictions between the FoI and the Considerations, and/or the need to insert qualifiers into the FoI to resolve any apparent contradictions. Therefore, I suggest that a revision to the Report, by taking Jorge's second sentence (slightly revised and rearranged) and placing it in this section of the Considerations text, where it will be read in the context of the existing Ruggie discussion. In this context, the first sentence (which is not really substantive) is no longer necessary. The revision would read as follows (new text in red). With regards to the UN Guiding Principles for Business and Human Rights<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities. For your convenience, Jorge's original suggestion was: The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value. I hope this is a useful idea, which could broaden the consensus around the entirety of the Human Rights Subgroup Report. Greg On Tue, Oct 10, 2017 at 10:35 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Resending again in view of tomorrow’s discussions. Please see below my message from 29 September week where I give some additional context on the proposal circulated to the CCWG (see further below my Email from Sept. 28) intended to bridge the difference between the dissent and the HR-Subgroup proposal. I would very much appreciate a discussion on the specific text being proposed in a spirit of compromise. kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Freitag, 29. September 2017 11:42 An: paul.twomey@argopacific.com<mailto:paul.twomey@argopacific.com>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Paul, and dear all, Paul, thank you for your clarity. However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns. But now we are at the beginning of the end of work stream 2. The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures: (1) it configures the HR clause as a “core value”; (2) the core value is just guiding; (3) it is subject to the core value balancing test; (4) core values yield to what is established in the commitments; (5) the core value has to be applied strictly within the Mission of ICANN; (6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc. Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission. Here is the Core Value text again for the convenience of all: “Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.” The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value. It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. As to these two sentences that I have proposed, they make two things: • First, there is a mention, amongst the international instruments, of the UNGP: “The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument. • Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” when applying the core value. Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Thanks all for your consideration and kind regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366<tel:(310)%20279-2366> Aust M: +61 416 238 501<tel:+61%20416%20238%20501> www.argopacific.com<http://www.argopacific.com> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366<tel:(310)%20279-2366> Aust M: +61 416 238 501<tel:+61%20416%20238%20501> www.argopacific.com<http://www.argopacific.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Jorge, HRC resolutions are non-binding, relying on states to follow up through their actions. A HRC endorsement, unanimous or otherwise, does not create legal obligations for states or ICANN. The UNGP are similar in that they are voluntary on businesses except where applicable laws have been enacted by states binding businesses in their jurisdiction. This concept is already amply expressed in the consensus text. Personally, I think Greg is being too generous in offering you further compromise after the group had arrived at broad consensus. But instead of accepting his olive branch, you continue to insist on further changes in your direction. Apparently, you believe we should not proceed until your position triumphs. How is that in anyway compromise? Best wishes, Brett __________ On Oct 11, 2017, at 3:53 AM, "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear Greg and all, I really appreciate very much this effort to bridge our differences also from Greg’s side. For your convenience here are again my suggested initial compromise proposal and Greg’s: (1) My original proposal, to include under section “internationally recognized human rights” of the FoI (page 6 in the attached document) the following changes in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ (1) Greg’s proposal, include red text under the “Considerations”: “With regards to the UN Guiding Principles for Business and Human Rights<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities.” We could endlessly discuss whether the FoI itself or the “Considerations” are the right place for the second sentence I had proposed (my original second sentence: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.”), but if placing it in the FoI itself is a no-go for Greg and others I would be in a position to accept this in a spirit of reaching a minimum agreement. I may also accept that Greg’s proposed text replaces a “should” by a “could” and that it also limits my general reference to the UNGP to a reference to “certain aspects”. I even may go with the introductory wording of Greg’s formulation, that may be construed as implying that ICANN Organization is not always a business (“To the extent that ICANN the Organization is a business”). However, in order to make this a more balanced compromise proposal I feel that the first sentence I proposed (“The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.”) should be maintained in the FoI under the international instruments that are being mentioned. As explained before this is just a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – so it is a relevant instrument. As an alternative, I could also live with a solution where the reference to the UNGP would be included in the footnote 3 on page 6 of the pdf attached, as follows: “3 Including, but not limited to: · Universal Declaration of Human Rights · International Covenant on Civil and Political Rights · International Covenant on Economic, Social and Cultural Rights · International Convention on Elimination of All Forms of Racial Discrimination · Convention on the Elimination of all Forms of Discrimination Against Women · Convention on the Rights of Persons with Disabilities · UN Declaration on the Rights of Indigenous Peoples · ILO’s Declaration on Fundamental Principles and Rights at Work (applicable to ICANN’s employees and workers) · The UN Guiding Principles on Businesses and Human Rights” Again, all this is being said with the caveat of this being my personal opinion (other members supporting the dissent may disagree and I will have to go back to other ministries later on down the road), but if the above conditions are met, I feel we could have a slightly broader consensus on the table. Thanks for your consideration and Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Mittwoch, 11. Oktober 2017 00:35 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; <ws2-hr@icann.org<mailto:ws2-hr@icann.org>> <ws2-hr@icann.org<mailto:ws2-hr@icann.org>> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences All, I'm not sure where this stands procedurally, as we are between first and second readings of the Human Rights Subgroup's report. Putting that concern aside, I thought it could be fruitful to respond to this proposal in the same spirit of compromise. If an acceptable resolution can be found, that would presumably resolve the "dissent" in the Subgroup Report, allowing the CCWG Draft Report to be circulated for public comment without a minority report. In considering this proposal, I believe that Jorge's suggested language would fit much more naturally into the section of the "Considerations" text where the Ruggie Principles are already discussed. That would avoid the appearance of contradictions between the FoI and the Considerations, and/or the need to insert qualifiers into the FoI to resolve any apparent contradictions. Therefore, I suggest that a revision to the Report, by taking Jorge's second sentence (slightly revised and rearranged) and placing it in this section of the Considerations text, where it will be read in the context of the existing Ruggie discussion. In this context, the first sentence (which is not really substantive) is no longer necessary. The revision would read as follows (new text in red). With regards to the UN Guiding Principles for Business and Human Rights<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities. For your convenience, Jorge's original suggestion was: The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value. I hope this is a useful idea, which could broaden the consensus around the entirety of the Human Rights Subgroup Report. Greg On Tue, Oct 10, 2017 at 10:35 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Resending again in view of tomorrow’s discussions. Please see below my message from 29 September week where I give some additional context on the proposal circulated to the CCWG (see further below my Email from Sept. 28) intended to bridge the difference between the dissent and the HR-Subgroup proposal. I would very much appreciate a discussion on the specific text being proposed in a spirit of compromise. kind regards Jorge ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Freitag, 29. September 2017 11:42 An: paul.twomey@argopacific.com<mailto:paul.twomey@argopacific.com>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Paul, and dear all, Paul, thank you for your clarity. However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns. But now we are at the beginning of the end of work stream 2. The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures: (1) it configures the HR clause as a “core value”; (2) the core value is just guiding; (3) it is subject to the core value balancing test; (4) core values yield to what is established in the commitments; (5) the core value has to be applied strictly within the Mission of ICANN; (6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc. Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission. Here is the Core Value text again for the convenience of all: “Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.” The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value. It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. As to these two sentences that I have proposed, they make two things: • First, there is a mention, amongst the international instruments, of the UNGP: “The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument. • Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” when applying the core value. Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Thanks all for your consideration and kind regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en<https://www.icann.org/resources/pages/cctlds/cctlds-en>) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366<tel:(310)%20279-2366> Aust M: +61 416 238 501<tel:+61%20416%20238%20501> www.argopacific.com<http://www.argopacific.com> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366<tel:(310)%20279-2366> Aust M: +61 416 238 501<tel:+61%20416%20238%20501> www.argopacific.com<http://www.argopacific.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <20170927 CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927.pdf> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear all, I hope that we with the proposal of Jorge and the utmost flexibility he has shown can accept his suggestion and put this issue behind us and move on. I support the proposal. Best, Finn Fra: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] På vegne af Jorge.Cancio@bakom.admin.ch Sendt: 11. oktober 2017 09:53 Til: gregshatanipc@gmail.com Cc: ws2-hr@icann.org; accountability-cross-community@icann.org Emne: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Greg and all, I really appreciate very much this effort to bridge our differences also from Greg’s side. For your convenience here are again my suggested initial compromise proposal and Greg’s: (1) My original proposal, to include under section “internationally recognized human rights” of the FoI (page 6 in the attached document) the following changes in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ (1) Greg’s proposal, include red text under the “Considerations”: “With regards to the UN Guiding Principles for Business and Human Rights<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities.” We could endlessly discuss whether the FoI itself or the “Considerations” are the right place for the second sentence I had proposed (my original second sentence: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.”), but if placing it in the FoI itself is a no-go for Greg and others I would be in a position to accept this in a spirit of reaching a minimum agreement. I may also accept that Greg’s proposed text replaces a “should” by a “could” and that it also limits my general reference to the UNGP to a reference to “certain aspects”. I even may go with the introductory wording of Greg’s formulation, that may be construed as implying that ICANN Organization is not always a business (“To the extent that ICANN the Organization is a business”). However, in order to make this a more balanced compromise proposal I feel that the first sentence I proposed (“The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.”) should be maintained in the FoI under the international instruments that are being mentioned. As explained before this is just a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – so it is a relevant instrument. As an alternative, I could also live with a solution where the reference to the UNGP would be included in the footnote 3 on page 6 of the pdf attached, as follows: “3 Including, but not limited to: • Universal Declaration of Human Rights • International Covenant on Civil and Political Rights • International Covenant on Economic, Social and Cultural Rights • International Convention on Elimination of All Forms of Racial Discrimination • Convention on the Elimination of all Forms of Discrimination Against Women • Convention on the Rights of Persons with Disabilities • UN Declaration on the Rights of Indigenous Peoples • ILO’s Declaration on Fundamental Principles and Rights at Work (applicable to ICANN’s employees and workers) • The UN Guiding Principles on Businesses and Human Rights” Again, all this is being said with the caveat of this being my personal opinion (other members supporting the dissent may disagree and I will have to go back to other ministries later on down the road), but if the above conditions are met, I feel we could have a slightly broader consensus on the table. Thanks for your consideration and Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Mittwoch, 11. Oktober 2017 00:35 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; <ws2-hr@icann.org<mailto:ws2-hr@icann.org>> <ws2-hr@icann.org<mailto:ws2-hr@icann.org>> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences All, I'm not sure where this stands procedurally, as we are between first and second readings of the Human Rights Subgroup's report. Putting that concern aside, I thought it could be fruitful to respond to this proposal in the same spirit of compromise. If an acceptable resolution can be found, that would presumably resolve the "dissent" in the Subgroup Report, allowing the CCWG Draft Report to be circulated for public comment without a minority report. In considering this proposal, I believe that Jorge's suggested language would fit much more naturally into the section of the "Considerations" text where the Ruggie Principles are already discussed. That would avoid the appearance of contradictions between the FoI and the Considerations, and/or the need to insert qualifiers into the FoI to resolve any apparent contradictions. Therefore, I suggest that a revision to the Report, by taking Jorge's second sentence (slightly revised and rearranged) and placing it in this section of the Considerations text, where it will be read in the context of the existing Ruggie discussion. In this context, the first sentence (which is not really substantive) is no longer necessary. The revision would read as follows (new text in red). With regards to the UN Guiding Principles for Business and Human Rights<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...>, 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<https://www.business-humanrights.org/en/un-guiding-principles/text-of-the-un...> 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. To the extent that ICANN the Organization is a business, it could consider certain aspects of the Guiding Principles as a useful guide when applying the Human Rights Core Value to its business activities. For your convenience, Jorge's original suggestion was: The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value. I hope this is a useful idea, which could broaden the consensus around the entirety of the Human Rights Subgroup Report. Greg On Tue, Oct 10, 2017 at 10:35 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Resending again in view of tomorrow’s discussions. Please see below my message from 29 September week where I give some additional context on the proposal circulated to the CCWG (see further below my Email from Sept. 28) intended to bridge the difference between the dissent and the HR-Subgroup proposal. I would very much appreciate a discussion on the specific text being proposed in a spirit of compromise. kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Freitag, 29. September 2017 11:42 An: paul.twomey@argopacific.com<mailto:paul.twomey@argopacific.com>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Paul, and dear all, Paul, thank you for your clarity. However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns. But now we are at the beginning of the end of work stream 2. The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures: (1) it configures the HR clause as a “core value”; (2) the core value is just guiding; (3) it is subject to the core value balancing test; (4) core values yield to what is established in the commitments; (5) the core value has to be applied strictly within the Mission of ICANN; (6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc. Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission. Here is the Core Value text again for the convenience of all: “Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.” The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value. It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. As to these two sentences that I have proposed, they make two things: • First, there is a mention, amongst the international instruments, of the UNGP: “The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument. • Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” when applying the core value. Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Thanks all for your consideration and kind regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP to all of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": 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. The suggested language absolutely contradicts the conclusion that " 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. " This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. Second, this is being inserted into the interpretation of the term "internationally recognized human rights " as stated in the Core Value. This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regarding agenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular, that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like to suggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I would suggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same time the UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. Next Plenaries 12.1. Thursday 28 September 19:00UTC 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366<tel:(310)%20279-2366> Aust M: +61 416 238 501<tel:+61%20416%20238%20501> www.argopacific.com<http://www.argopacific.com> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366<tel:(310)%20279-2366> Aust M: +61 416 238 501<tel:+61%20416%20238%20501> www.argopacific.com<http://www.argopacific.com> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (11)
-
avri doria -
Finn Petersen -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
McAuley, David -
Nigel Roberts -
Olga Cavalli -
Paul Twomey -
Renata Aquino Ribeiro -
Rudolph Daniel -
Schaefer, Brett