Best regards,

León

El 28/10/2015, a las 3:39 p.m., Paul Twomey <paul.twomey@argopacific.com> escribió:

HI Niels

Thanks for your reply.

I think the best I can do is ask for some time on Friday to explain the practical steps involved in changes of tld operator (especially a cctld operator) both through requests for redelegation and also requests for changes in the zone file through the IANA process. Because it is several of these where I see ICANN being practically engaged in recognizing end empowering a related party which could be guilty of human rights abuse.

As for the Ruggie Principles, let me point again to principle 13 and its commentary (and that of principle 19):

13.

The responsibility to respect human rights requires that business

enterprises:

(a)

Avoid causing or contributing to adverse human rights impacts

through their own activities, and address such impacts when they

occur;

(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.

(/Emphasis added - this is the nature of the IANA functions relationship with ccTLDs) //
/

Commentary

Business enterprises may be involved with adverse human rights impacts either

through their own activities or as a result of their business relationships with

other parties. Guiding Principle 19 elaborates further on the implications for

how business enterprises should address these situations. For the purpose of

these Guiding Principles a business enterprise’s “activities” are understood

to include both actions and omissions; and its “business relationships” are

understood to include relationships with business partners, entities in its

value chain, and any other non-State or State entity directly linked to its

business operations, products or services

Commentary on Principle 19

The more complex the situation and its implications for human rights, the

stronger is the case for the enterprise to draw on independent expert advice

in deciding how to respond. */(ICANN is the body to make decisions on tlds - there is not another expert body)/*

If the business enterprise has leverage to prevent or mitigate the adverse

impact, it should exercise it. And if it lacks leverage there may be ways for

the enterprise to increase it. Leverage may be increased by, for example,

offering capacity-building or other incentives to the related entity, or

collaborating with other actors. */(ICANN should not be asked to put political leverage on a government - it will destroy its apolitical role)/**//*

*//*

There are situations in which the enterprise lacks the leverage to prevent

or mitigate adverse impacts and is unable to increase its leverage. Here,

the enterprise should consider ending the relationship, taking into account

credible assessments of potential adverse human rights impacts of doing so. *(ICANN cannot consider ending a relationship with a cctld and still operate the IANA functions )***

** *
**
*It seems to me that Ruggie Principles basically are saying if another party in which you are in a business relationship continues to breach human rights you should consider ending the relationship.

this is just what ICANN can NOT do with a ccTLD or even some TLD operators if it is going to continue to be the protocol coordinator of a single Interoperable Internet.

But if it does not breach these relationships one can just see the level of litigation from human rights and dissident groups which could be brought against ICANN if it does adopt these principles without amendment.

Paul

On 10/27/15 3:34 AM, Niels ten Oever wrote:

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Hi Paul,

I'm sorry for responding this late. Please find my response inline:

On 10/20/2015 04:09 AM, Paul Twomey wrote:

Niels

I am again confronted with the challenge of understanding exactly
what these broadly stated proposals mean.

We did our best to be precise, but maybe we haven't sufficiently
succeeded. Could you please point our which proposals or
recommendation (in the report) you mean with 'these broadly stated
proposals'?

Does your paper just refer to the process within ICANN of creating
policy - or does it apply to the application of that policy?

As the paper described, a human rights review could be part of the
Policy Develop Process. But to have a full human rights report, the
impact of ICANN's policies and operations should be assessed.

For instance, concerning specific ICANN necessary functions would
you be able to tell me how the process recommended in this paper
would apply to the GAC principles on redelgation of ccTLDs or the
ccNSO process which has been underway on redelgations? These are
both products of policy making processes.

The report recommends a way forward, based on international best
practices, for creating a human rights policy, the content of the
policy and how it would be implemented is of course up for discussion
in an appropriate process.

Does it mean that freedom of expression has to be an overriding
principle in these cases - and if so how do you see
operationalizing that?

I don't think this was mentioned or implied anywhere in the report.
Rights need to be balanced, the challenge is to come up with a
framework to do this in the best way.

If a government, operating clearly under its laws, requests the
redelegation of ccTLD from one body to another because the new law
empowers the government to get information about domain name
registrants from the new body and to order the new body to remove
registrations on instructions from the government (I know of at
least 2 examples just like this happening in the last 10 years) and
if such a request is consistent with the GAC principles etc, it
seems to me that your paper implies that ICANN would be required to
either deny this request or require that the existing policy
processes be changed.

Have I got it right? Or is it just that in the policy development
process all who wanted to participate had the freedom to express
their views?

The latter is the case.

Please understand that I also think that we should try to hold
ICANN to human rights standards but I remain concerned that as soon
as the Ruggles Principles emerge as the answer I keep finding
related party issues which could really destabilize the whole ICANN
mission.

Am very happy to discuss this with you, you mentioned this before, but
I am still a bit unclear which part of the Ruggie principles could
potentially destabilize ICANN.

The bottom line is that ICANN has to support EVERY ccTLD and TLD
operator if we are going to have a single interoperable Internet.
It is not like a business - a business can agree not to do business
in a particular country.   ICANN will not be able to do so and
fulfill its mission.

I think it is crucial for an organization to know and show where there
are (risk for) human rights abuses in relation to their operations and
think about ways how these can be re-mediated or improved upon, this
by no way automatically means that ICANN cannot do x or y or engage
with a specific country or business.

There are also other bodies that have done this, such as the
International Bar Association.

I look forward to your response.

Again, sorry for the late reply, am looking forward to your thoughts.

Best,

Niels

Best

Paul

On 10/19/15 9:26 PM, Niels ten Oever wrote: Dear Paul,

This was indeed meant to inform WP4 on the activity in the CCWP-HR
and give an example of what the considerations and work in WS2
might look like.

Looking forward to hear your comments and/or questions.

Best,

Niels

On 10/19/2015 09:10 AM, Avri Doria wrote:

Hi,

I think it is informational. Explains many of the things we
have been discussing.

It is the output of a parallel work effort and is meant to
inform.

avri

On 19-Oct-15 00:58, Paul Twomey wrote:

Sorry Niels

I am not attending Dublin.   Can you please inform me how
this document fits within the work of Working Party 4?

Paul

On 10/18/15 2:19 AM, Niels ten Oever wrote:

Dear WP4 members,

It's with great pleasure that I send you the the report
prepared by the CCWP-HR on ICANNâs Corporate
Responsibility to respect Human Rights: Recommendations
for developing Human Rights Review Process and
Reporting.

The report will be presented and discussed during our
session on Wednesday October 21 at 9:00 in Wicklow MR5 or
via remote participation [0] for which you all have been
invited.

I trust this report will help further the discussion on
how ICANN can live up to its responsibility to respect
human rights.

Looking forward to discuss.

Best,

Niels

PS Feel free to spread the report widely. it can also be
found on the website of the CCWP-HR:
https://tinyurl.com/cchumanrights

[0]
https://meetings.icann.org/en/dublin54/schedule/wed-ccwp-human-ri

ght
s-morning

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