Dear Paul, dear Niels 

Sorry for intervening your conversation.

I think there has been a bit of misunderstanding or miscommunication concerning the new report of the CCWP-HR on ICANN's Corporate Responsibility to respect Human Rights. I would like to make a bit of clarification, which hopefully will solve this. 

The main aim of this new CCWP report was to analyse and map current human rights policies (not only Ruggie principles, but such standards as, for example, transparency reporting) to see what the CCWP and broader community can further use in developing/suggesting HR policies and frameworks for the ICANN. 

In no way this report was going to suggest to commit (blindly) to Ruggie principles or to make ICANN a human rights watchdog. While drafting this report, the working party was always bearing in mind that ICANN is not like any other business and we need a unique set of policies to keep a careful balance and not to impose any obligation to enforce human rights. The Ruggie in this sense are guiding principles by no means absolute in themselves, they can only help us to explore the options and think about a proper human rights policy. 

This report is just a first step (but a big progress for the CCWP) in the development of this unique set of standards. CCWP is committed to carry out analysis of these standards and best practices and to reveal the possible risks and impact for the ICANN. The possible risks pointed out by Paul are actually some of the risks we are going to take into account,  among many others that are to be analysed further. This analysis and development of frameworks is still a long road to walk, and CCWP is just one of the contributors, and we are going to work with all the interested parties and ICANN community: there are many things that have to be taken into account, such ICANN processes, etc. etc. So this report is just a set of policy/standards mapping and some specific recommendations, but to make it reality there is no quick off the cuff solution or blind commitment, and I think we all understand this. 

Furthermore, because of  ICANN's unique mission, any principles and standards, including Ruggie, need a very careful consideration. I think that we all agree here (well, may be not all, but majority of us :)), at WP4, as well at the CCWP, that our goal is to develop bylaws language and policies that will commit ICANN only to respecting human rights and only within its mission, but not to human rights enforcement or anything like this. We all want to avoid any commitment that will turn ICANN to watchdog or can disturb its main mission. 

Thus, I think it shall be pointed out once again that one should treat this report as an analysis, which points out to different policies and standards – Ruggie might be among them, but there is much more in this report, actually, - as a first step in developing unique HR policies and frameworks for ICANN. 

I hope this clarifies the situation with Ruggie and with the aim of the report. The debate that Paul and Niels have is a very valuable one, but it rather has to deal with the future discussions in the HR frameworks development. Every concern pointed by Paul should and will be taken into account, as well as any concerns of any other members of the ICANN community. 

Caveat: I am speaking in my individual capacity, not on behalf on CCWP. So if I got anything wrong concerning CCWP goals or missed any important point, I hope Niels can follow and clarify.

Best regards

Tanya


On 28/10/15 22:39, Paul Twomey wrote:
> 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:
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 ICANN’s 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
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>> _______________________________________________
>>>>>>>> Wp4 mailing list Wp4@icann.org
>>>>>>>> https://mm.icann.org/mailman/listinfo/wp4
>>>>>>> -- Dr Paul Twomey Managing Director Argo P@cific
>>>>>>>
>>>>>>> US Cell: +1 310 279 2366 Aust M: +61 416 238 501
>>>>>>>
>>>>>>> www.argopacific.com
>>>>>>>
>>>>>>>
>>>>>>> _______________________________________________ Wp4 mailing
>>>>>>> list Wp4@icann.org
>>>>>>> https://mm.icann.org/mailman/listinfo/wp4
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>>>>>> _______________________________________________ Wp4 mailing
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>>>>>>
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>>>
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>> _______________________________________________ >> Wp4 mailing list >> Wp4@icann.org >> https://mm.icann.org/mailman/listinfo/wp4 > > -- > Dr Paul Twomey > Managing Director > Argo P@cific > > US Cell: +1 310 279 2366 > Aust M: +61 416 238 501 > > www.argopacific.com > > > _______________________________________________ > Wp4 mailing list > Wp4@icann.org > https://mm.icann.org/mailman/listinfo/wp4