October 2016 - Ws2-hr - lists.icann.org

Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 8 | 4 October
by MSSI Secretariat Oct. 10, 2016

Oct. 10, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #8 – 4 October 2016 will be available here: https://community.icann.org/x/ZwW4Aw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers NOTES: 18 participants in Adobe room at start of call. 1. Administrivia Roll call, absentees, SoIs, etc Niels ten Oever: Markus phone only. Changes to SOIs? (none). Changes to agenda? Tatiana Tropina: Is there a summary of previous discussion? Niels ten Oever: report of the last meeting. Brett Schaefer: Again we seem to be starting from the assumption that the RUggie Principles are our base document and we are trimming from them. Why? Tatiana Tropina: Brett, not. At least this is NOT my assumption. Markus ..: Should we take a step back? There are parallels with FIFA. Having Ruggie attend a meeting could be good. Cheryl Langdon-Orr (CLO): good question Brett Tatiana Tropina: But there is a divergence in the views of this group. I will fight against the assumption that Ruggie is our base document Brett Schaefer: I also remain concern that the draft FoI seems to assume that ICANN can voluntarily adopt HR obligations even though that seems in opposition to the Core Value text. Niels ten Oever: explanation of how the document was arrived at - it is a preliminary document that was meant as a scratch pad. I may of share this prematurely. It does not represent any kind of consensus. I have been discussing our project with John Ruggie but he is a very busy man and cannot attend our call. David McAuley: My recommendation is that the FOI it should be a separate document so everyone can see our progress. Niels ten Oever: agree with that and will work on creating a clean document after this call. Kavous Arasteh: Simple to criticize but hard to do. Why do we always come back to applicable law - Tatiana Tropina: I won't also assume that the content of the FoI document is actually FoI. It's good structure-wise but content-wise it makes the assumptions that I will fight against. Greg Shatan: Brett, whether or not ICANN can adopt voluntary obligations is beyond the scope of interpreting the Bylaw. Brett Schaefer: @Greg, if so, then teh FoI is out of scope. Tatiana Tropina: Niels, but this is not reflecting the discussions we had! Anne Aikman-Scalese: Agree wtih Greg Shatan: Agree with Tatiana, any FoI should build on our discussions. This doesn't Greg Shatan: Brett, this is very consistent with my concern. Tatiana Tropina: Greg, the document is good structure wise though. So I don't want to look like I am trushing the work of others. Tatiana Tropina: David, I agreed with you already in the comments in the doc. This will solve the problem. Tatiana Tropina: thanks for the suggestion. David McAuley (RySG): Thank you Niels Cheryl Langdon-Orr (CLO): Good point David perhaps just start with a Outline frame for the FOI discussions to come Tatiana Tropina: because the outline is good. Cheryl Langdon-Orr (CLO): Yes Tatiana the skeleton / structure is fine matthew shears: yes, use outline but leave Ruggie for later David McAuley (RySG): I am one of those who think "applicable law" is an important part of the bylaw we are interpreting matthew shears: an entity respects human rights through complying with applicable law Tatiana Tropina: David, yes. David McAuley (RySG): One critical question we should ask about all undertakings suggested in this document is this: Are they “required by applicable law?” If not, then we should recall the following words that are a part of Bylaw Article 1.2(b)(viii): “This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN … beyond obligations found in applicable law.” Cheryl Langdon-Orr (CLO): indeed David David McAuley (RySG): That is why I believe any incorporation of any Ruggie Principle must be subject to an overarching statement that its impact will be subordinate to the “required by applicable law” filter. matthew shears: david: an entity respects human rights through complying with applicable law David McAuley (RySG): I appreciate Niels effort to get Prof Ruggie to come to a call Greg Shatan: David, I think that filter would eliminate much of the Ruggie Principles in the context of ICANN. Tatiana Tropina: Non-binding can still open the door for claims and court cases once ICANN commits to them Tatiana Tropina: Greg, +1 David McAuley (RySG): I tend to agree @Greg Jorge Cancio: Thanks to Niels for the document which will help our work. Ruggie principles are not binding for business entities but they are a benchmark internationally - We should go into this discussion with an open mind. Would be interesting to hear what mr. Ruggie explains what is behind those principles. We have to mindful that this is a core value. Niels ten Oever: I have reached out to the UN working group but have not heard back. Anne Aikman-Scalese: I think NIels has already acknowledged the edits were premature. Thank you Niels for recognizing this. Greg Shatan: We need to concentrate more on what the Bylaws say vs analyzing Ruggie principles. The document seems to assume a particular point of view which is not consensus of this group. All points of view have to be represented in this document - possibly using more columns? Applicable law is a very important limitation. Agree with JC that we need an open mind which means we do not know if Ruggie principles are usable or not. jorge cancio (GAC Switzerland): we could have a second "descriptive" column and a third column with our different analysis of the facts Niels ten Oever: If my draft is only causing people to participate then this is good. Re Applicable law - the only suggestion we have on this is from PM regarding looking at state and county laws that are applicable. How could we address this? David McAuley: Applicable law is an actionable term as is and does not need to be analyzed or defined. ACTION ITEM will send his thoughts on Applicable Law to the list for the group. jorge cancio (GAC Switzerland): on "applicable law": why don't we start with an interpretation from ICANN legal? what it means to them? Greg Shatan: I think this is our job, not Jurisdiction. We can Greg Shatan: not hand it off. Erich Schweighofer: Applicable law changes, not the term. Tatiana Tropina: I agree with David... jorge cancio (GAC Switzerland): on "applicable law": why don't we start with an interpretation from ICANN legal? what it means to them? David McAuley (RySG): I will take a stab at it, Jorge, but if ICANN legal would do that then in my view that would be preferable Niels ten Oever: will now proceed with agenda. 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 19, 17, 18 Niels ten Oever: Due diligence and principle 19 - thoughts? Jorge Cancio: I would leave that at this point - this is operational parts of the principles and is about implementation and not interpretation. Tatiana Tropina: We had not consensus on what due diligence actually means. Effective Integration seems to go into enforcement - at best this is controversial. Kavous Arasteh: There is no due diligence here - this looks good - the chapeau part seems to apply quite well. Niels ten Oever: the section containing this principles is labelled Due Diligence in the Ruggie principles. Greg Shatan: Principle 19 is all about implementation and beyond the scope of this group. Our job is to interpret the Bylaws. Tatiana Tropina: I just want to say that this principle has to be read together with others. It's not a standing alone principle. David McAuley (RySG): Mitigate would be acceptable as long as required by applicable law Tatiana Tropina: And if Ruggie require a broad impact assessment ... this is a broad thing. Tatiana Tropina: David, yes, as well as protect and enforce matthew shears: @ David - even then it could be outside the scope of the bylaw Tatiana Tropina: And yes, it is the issue of implementation Niels Ten Oever: GS is mitigation not part of what we are doing? Greg Shatan: corect. Kavouss Arasteh 2: Any time and evry time we discuss an issue somebody says the issue is of implementation nature. Kavouss Arasteh 2: How we could draw a line between policy principles and implementation principles. Greg Shatan: anytime we are writing what people should be doing wrt HR then we have probably strayed over the line. Jorge Cancio: I agree with what GS has said. Anne Aikman-Scalese: I note that ICANN has not yet made policy has to HR. This is a high level By-Law. Policy will be made in accordance with the existing ICANN processes - including Policy Development. Cheryl Langdon-Orr (CLO): I am in line with your thinking Greg / Jorge Greg Shatan: If we are talking about what ICANN is free to do, and not what it Greg Shatan: is committed to do we are no longer interpreting a bylaw. matthew shears: could we move on to the other princples in the agenda so that we move on from Ruggie for the next call? Kavous Arasteh: do we need to discuss Ruggie or not? we need to resolve this. Jorge Cancio: On principle 17 seems to be more on implementation as it explains what 15B means. David McAuley: I would align with GS on principle 17. Ruggie are drafted to apply to all businesses while we are approaching this from the POV of ICANN which is a very specific type of business. Niels ten Oever: We are making progress and there is light at the end of the tunnel. Kavous Arasteh: when I look at Ruggie are all based on Assessing, evaluating and mitigating, prevention etc....maybe we only need one or two things from this. Anne Aikman-Scalese: ICANN will be undertaking policy-making activities with reference to the FOI-HR. Implementation will occur after policy is adopted - in accordance with existing ICANN processes. Agree that human rights impact assessment is implementation. Not sure as to whether conducting due diligence is policy or implementation. It is quite certain that if it affects registry contract obligations, it is policy. Greg Shatan: I think we are being sloppy in using the term "policy" as if it is interchangeable with interpretation. Cheryl Langdon-Orr (CLO): Yes I thought that was what we are doing Niels matthew shears: I a way Niels this has been a useful exercise for me because at the outset it was unclear to me whether Ruggie was in scope and suitable - but now having gone through this I am convinced that they are largely not, and certainly not as a starting point for our limited work on the FoI Brett Schaefer: +1 Matthew Niels ten Oever: Principle 18 Cheryl Langdon-Orr (CLO): yup Niels ten Oever: I think our opinions our converging indeed Tatiana Tropina: Yes, Matt. Having gone through them I am not convinced to change my position that Ruggie shall be out unless we decide something is in Anne Aikman-Scalese: As previously expressed, I favor some version of Principle 18 being added to the FOI- HR. I believe this is consistent with current ICANN processes. Brett Schaefer: Yes, consensus seems to be that Ruggie is not a sound basis for the FoI. We should reconsider our approach. Greg Shatan: anything that starts with IN ORDER TO is implementation and outside our scope. 3 phases, interpreting the Byalws, implementing the bylaw through policy dev. and then development. Niels ten Oever: I think that is not what people said Brett, parts of Ruggie are useful, not wholly applicable. jorge cancio (GAC Switzerland) 2: +1 Niels Brett Schaefer: Really, I thought people supported Matthew who said: I a way Niels this has been a useful exercise for me because at the outset it was unclear to me whether Ruggie was in scope and suitable - but now having gone through this I am convinced that they are largely not, and certainly not as a starting point for our limited work on the FoI. Niels ten Oever: who will take a stab at the next version of the document? GS, TT, MS, JC. Adjourned.

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Re: [Ws2-hr] John Ruggie update
by Niels ten Oever Oct. 10, 2016

Oct. 10, 2016

Thank you very much. Jorge and Lee, could you liaise to make this happen? Thanks in advance, Niels On 10/10/2016 10:50 AM, HIBBARD Lee wrote: > Dear Niels, > > I would be happy to help in this matter: I can reach out to our colleagues in the OHCHR and Secretariat to the UN working group on business and human rights. > > Kind regards, Lee > > Lee Hibbard > Internet Governance Coordinator > Council of Europe - DG1 Human Rights and Rule of Law > Tel: +33 388 41 3104 / www.coe.int > > > -----Original Message----- > From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Jorge.Cancio(a)bakom.admin.ch > Sent: jeudi 6 octobre 2016 14:10 > To: lists(a)nielstenoever.net; ws2-hr(a)icann.org > Subject: Re: [Ws2-hr] John Ruggie update > > Dear Niels > > As I said on the call last Tuesday I would be happy in helping to set up that contact with the UNWG... > > cheers > > Jorge > > -----Ursprüngliche Nachricht----- > Von: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever > Gesendet: Donnerstag, 6. Oktober 2016 14:06 > An: ws2-hr(a)icann.org > Betreff: [Ws2-hr] John Ruggie update > > Dear all, > > John Ruggie has no time at this moment due to personal reasons, when things clear up on his side, he will contact us again because he is very interested in our work. > > I haven't heard back from the UN WG on the issue of human rights and transnational corporations and other business enterprises, if someone has a contact there, it might help us think what (other) models could be applicable. > > Best, > > Niels > > > -- > Niels ten Oever > Head of Digital > > Article 19 > www.article19.org > > PGP fingerprint 8D9F C567 BEE4 A431 56C4 > 678B 08B5 A0F2 636D 68E9 > > > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr > -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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My thoughts on "Applicable Law" in HR Bylaw
by McAuley, David Oct. 7, 2016

Oct. 7, 2016

Coming out of last week's sub-team call Niels asked if I would write down my understanding of the term "applicable law" that appears in Bylaw (Core Value) 1.2(b)(viii). This is the Bylaw for which we are endeavoring to create a Framework of Interpretation. The term "applicable law" appears in two of this Bylaw's three sentences and constitutes, in my opinion, an important limitation to ICANN's undertaking. My understanding of the concept of applicable law refers to that body of law that binds ICANN at any given time and in any given circumstance. It could consist of statutes, rules, regulations and the like, as well as decisional orders/rulings of courts having appropriate jurisdiction, that take effect through the power of a legitimate governmental entity. It is a changeable concept inasmuch as laws, regulations, etc. change over time. It can be fairly long-lasting, such as California corporate-governance rules impacting ICANN, or it can be fairly short-term in effect: if ICANN chooses to organize a meeting of its board, staff and community in Hyderabad then the board, staff, and community must observe Indian travel regulations affecting visitors. Applicable law can work disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in Singapore, Turkey, Uruguay, Belgium, etc. then it must observe appropriate (and potentially conflicting) personnel laws in those various places. Applicable law is thus be a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. That is how I personally understand the term - it might make sense to ask the ICANN legal department to weigh in on this given the importance of the term to ICANN in this Bylaw. But I stressed the importance of this one limitation (among others) on our call because it appears to be central to this Bylaw. It exists and is repeated, it cannot be ignored or written away. And if we were to interpret this Bylaw in a manner requiring ICANN to respect rights beyond those found in applicable law we would, in effect, be asking ICANN to write law - to go well beyond its expertise. For an organization with such a limited technical role that would be a mistake, in my opinion. David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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John Ruggie update
by Niels ten Oever Oct. 6, 2016

Oct. 6, 2016

Dear all, John Ruggie has no time at this moment due to personal reasons, when things clear up on his side, he will contact us again because he is very interested in our work. I haven't heard back from the UN WG on the issue of human rights and transnational corporations and other business enterprises, if someone has a contact there, it might help us think what (other) models could be applicable. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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John Ruggie update
by Niels ten Oever Oct. 6, 2016

Oct. 6, 2016

Dear all, John Ruggie has no time at this moment due to personal reasons, when things clear up on his side, he will contact us again because he is very interested in our work. I haven't heard back from the UN WG on the issue of human rights and transnational corporations and other business enterprises, if someone has a contact there, it might help us think what (other) models could be applicable. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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FW: CCWG-Acct HR Subgroup Response to question ICANN Legal should be asked what Human Rights Law is applicable to ICANN operations
by Aikman-Scalese, Anne Oct. 4, 2016

Oct. 4, 2016

Resending during October 4 call. If you look at the last page, you see some comments on “applicable law”. Anne From: ws2-hr-bounces(a)icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Karen Mulberry Sent: Tuesday, September 20, 2016 10:48 AM To: ws2-hr(a)icann.org<mailto:ws2-hr@icann.org> Subject: [Ws2-hr] CCWG-Acct HR Subgroup Response to question ICANN Legal should be asked what Human Rights Law is applicable to ICANN operations Here is a memo from Sidley Austin LLP to the CCWG during WS1 that addresses the question the subgroup raised - ICANN Legal should be asked what Human Rights Law is applicable to ICANN operations. ICANN legal is supportive of what is set out in the memo. Karen Mulberry Multistakeholder Strategy and Strategic Initiatives ICANN ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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New Draft Text for FoI
by Niels ten Oever Oct. 4, 2016

Oct. 4, 2016

Dear all, I hope this e-mail finds you well. To ensure nothing of our constructive discussions is getting lost, and to help us continue to be very concrete, I would like to share with you the attached document, that can also be found here (page 2 onwards): https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUO… The document aims to represent a sedimentation of our discussion and suggest a way forward, by providing potential text for the Framework of Interpretation. Partially inspired by the reaction of John Ruggie when I brought up our concerns with him. I hope this proves to be useful, and I am more than happy to discuss it with you all on the list and the call, and of course work on suggestions and comments in the Google Doc. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Proposed Agenda October 4 19:00 UTC
by Niels ten Oever Oct. 4, 2016

Oct. 4, 2016

Dear all, Please find underneath and attached the proposed agenda for the call of October 4, 19:00 UTC. Comments and suggestions are welcome as always. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 19, 17, 18 3. AOB Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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