Re: [Ws2-hr] Applicable Law - that is applicable to ICANN and requires it to protect free expression internally

Sept. 28, 2016

      Thanks for this Anne.  The working group’s steadfast refusal to do the work necessary to understand – rather than assume – what the applicable laws are, has been very disheartening.  I just don’t think it is a good idea to build work based on willful ignorance rather than information and I remain befuddled at why such a learned crowd seems fully prepared to skip this important step.

Regards,

Paul

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Wednesday, September 28, 2016 4:55 PM
To: 'Nigel Roberts' <nigel@channelisles.net>; ws2-hr@icann.org
Cc: Paul D. McGrady (pmcgrady@winston.com) <pmcgrady@winston.com>
Subject: [Ws2-hr] Applicable Law - that is applicable to ICANN and requires it to protect free expression internally

Nigel, I have a question about your quote from this e-mail. The quote is:

" There is no applicable law, for example, that protects individuals and organisations against breaches of their right to free expression."

You seem to be saying that on expiration of the IANA contract, ICANN has a lesser duty under applicable law in relation to freedom of expression since it will be " a private company that no longer has any formal connection to the US Government." I see your point in that all the Federal Acquisition Regulation  obligations contained in the IANA contract go by the wayside.  

One reason I ask about this is due to the U.S. Labor Law in relation to freedom of speech/expression that I think quite clearly governs ICANN’s employment practices – at least in the U.S.  For example, we have a case decided by the U.S. Supreme Court that held that Abercrombie & Fitch could not turn down employment to a woman who wore a hijab to her interview because its dress code called for a “classic East Coast collegiate style”.   The Supreme Court held the decision was apparently motivated by a desire to avoid accommodating the young woman’s religious practice.  The vote was 8 to 1.  So this case, decided in June of 2015, is definitely “applicable law” in relation to ICANN’s business practices and definitely requires ICANN to avoid “breaching” individual rights to freedom of expression.  (EEOC v. Abercrombie & Fitch)

I think this is a discussion that gets to the heart of Paul McGrady’s repeated requests that we focus on the issue of “applicable law”.    Where it gets much harder is when we discuss how ICANN may be obligated not because of its role as an employer, but rather because of its role as the Awarder in Chief of registry contracts.

If anyone is interested in applicable law that governs ICANN employee reasonable accommodation for freedom of expression in the U.S., (not sure about outside the U.S.), the following link may be helpful:

https://www.eeoc.gov/eeoc/newsroom/wysk/workplace_religious_accommodation.cf...

Anne

Anne E. Aikman-Scalese

Of Counsel

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-----Original Message-----
From: ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org>  [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts
Sent: Tuesday, September 27, 2016 11:20 PM
To: ws2-hr@icann.org <mailto:ws2-hr@icann.org> 
Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Paul is correct.

I also must take issue with Greg. The construction of the by law so as to restrict ICANN to only respect human rights where an applicable DOMESTIC law requires it to, is wrong, and is the exact reason I argued, in the minority, against the phrase.

There is no applicable law,, for example, that protects individuals and organisations against breaches of their right to free expression.

If there is, tell me what it is, and where I can read and construe it.

In particular, please tell me the section of that law that makes it applicable to a private company that no longer has any formal connection to the US Government.

On 27/09/16 21:05, Paul Rosenzweig wrote:
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I guess you folks leave me confused.  Certainly, all human rights are due to be respected.  But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN?  There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no?  Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant?
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Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others?  Or is that really so controversial a statement that it can't be made?
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Paul
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-----Original Message-----
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From:  <mailto:ws2-hr-bounces@icann.org> ws2-hr-bounces@icann.org [ <mailto:ws2-hr-bounces@icann.org> mailto:ws2-hr-bounces@icann.org] On
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Behalf Of Daniel Appelman
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Sent: Tuesday, September 27, 2016 2:59 PM
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To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com>; 'Bastiaan Goslings'
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< <mailto:bastiaan.goslings@ams-ix.net> bastiaan.goslings@ams-ix.net>; Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com>
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Cc:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
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Thanks for your thoughts, Anne.  I never advocated excluding any human rights from the framework, of course.  But none of the comments thus far have convinced me that they are all equally relevant for ICANN.
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-----Original Message-----
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From: Aikman-Scalese, Anne [ <mailto:AAikman@lrrc.com> mailto:AAikman@lrrc.com]
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Sent: Tuesday, September 27, 2016 11:53 AM
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To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan
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Cc:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
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Dan,
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I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships.   I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights.  To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed.
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Anne
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Anne E. Aikman-Scalese
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Of Counsel
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-----Original Message-----
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From: Daniel Appelman [ <mailto:dappelman@mh-llp.com> mailto:dappelman@mh-llp.com]
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Sent: Tuesday, September 27, 2016 11:50 AM
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To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan
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Cc:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
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Anne:  So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others?  And is that the consensus of the WG?
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I do agree with the statements in your second and third paragraphs, btw.
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Dan
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-----Original Message-----
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From:  <mailto:ws2-hr-bounces@icann.org> ws2-hr-bounces@icann.org [ <mailto:ws2-hr-bounces@icann.org> mailto:ws2-hr-bounces@icann.org] On
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Behalf Of Aikman-Scalese, Anne
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Sent: Tuesday, September 27, 2016 11:34 AM
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To: 'Bastiaan Goslings'; Greg Shatan
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Cc:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
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It is not true that "some human rights are more important than others".  I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task.   This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting.
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I also wish to re-emphasize that the primary role in which ICANN may
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have a positive impact on human rights is in its primary business
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relationships. These are the contractual obligations with registries
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and registrars.  Again, these are matters which must ultimately be
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addressed via PDP so in developing an FOI-HR, we must take that into
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account and understand that we are developing an FOI-HR that will be
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applied in the PDP process (as well as other processes within ICANN.)
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As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process.  That would be wholly voluntary.  Some may feel this is beyond scope and mission as to what the Bylaw requires.  Would like to know others thoughts on this point.
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Anne
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Anne E. Aikman-Scalese
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Of Counsel
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520.629.4428 office
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520.879.4725 fax
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<mailto:AAikman@lrrc.com> AAikman@lrrc.com
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_______________________________
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Lewis Roca Rothgerber Christie LLP
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One South Church Avenue, Suite 700
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Tucson, Arizona 85701-1611
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lrrc.com
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-----Original Message-----
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From:  <mailto:ws2-hr-bounces@icann.org> ws2-hr-bounces@icann.org [ <mailto:ws2-hr-bounces@icann.org> mailto:ws2-hr-bounces@icann.org] On
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Behalf Of Bastiaan Goslings
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Sent: Tuesday, September 27, 2016 11:20 AM
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To: Greg Shatan
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Cc:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
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I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’.
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Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’.
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(The ‘also’ refers to the commitments in section 1.2)
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-Bastiaan
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On 27 Sep 2016, at 19:56, Greg Shatan < <mailto:gregshatanipc@gmail.com> gregshatanipc@gmail.com> wrote:
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You seem to assume that the Framework will deal with rights at the granular level.  I don't think it needs to or should.  The question is "What human rights is ICANN committed to respect?"  I don't think the answer should be "Some of them."
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On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman < <mailto:dappelman@mh-llp.com> dappelman@mh-llp.com> wrote:
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Some human rights are obviously more applicable to ICANN than others.  ICANN’s framework should focus on those in particular.  If that’s “cherry-picking” then I don’t understand how anyone could object to it.  Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities?  It’s just not logical.
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From:  <mailto:ws2-hr-bounces@icann.org> ws2-hr-bounces@icann.org [ <mailto:ws2-hr-bounces@icann.org> mailto:ws2-hr-bounces@icann.org] On
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Behalf Of Greg Shatan
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Sent: Tuesday, September 27, 2016 10:42 AM
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To: Schweighofer Erich
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Cc:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00
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UTC
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A response on Erich's last point:
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WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.
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This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that.  Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such) they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws.  The Bylaw doesn't take us further than that.
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It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.
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You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.
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We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't.  Whatever you call it, I'm opposed to it.  I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that.  But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document.   The extent of ICANN's commitment to human rights is stated in the Bylaw, --  to respect internationally recognized human rights as required by applicable law.  This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's co!
mmitment

i

s limited to what is "required by applicable law."  ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.
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Greg
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On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich < <mailto:erich.schweighofer@univie.ac.at> erich.schweighofer@univie.ac.at> wrote:
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My clarifications „inline“. Sorry for quick drafting and being unclear.
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Erich Schweighofer
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Von: Greg Shatan [ <mailto:gregshatanipc@gmail.com> mailto:gregshatanipc@gmail.com]
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Gesendet: Dienstag, 27. September 2016 17:35
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An: Schweighofer Erich
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Cc: Niels ten Oever;  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00
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UTC
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I agree in part and disagree in part:
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On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich < <mailto:erich.schweighofer@univie.ac.at> erich.schweighofer@univie.ac.at> wrote:
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The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.
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I tend to agree with this.
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The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.
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I'm not sure what this means.  If it means that there are Ruggie
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obligations that don't fit ICANN, then I agree.  Otherwise, this
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needs further explanation.
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Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.
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ICANN is inclusive, e.g. also flexible.
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Again not sure what this means.  If this means that ICANN must be
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(governments and otherwise), whether or not they comply with human
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for the Internet.  If this means something else, it needs further
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explanation. 
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It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.
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WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.
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This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that.  Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such) they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws.  The Bylaw doesn't take us further than that.
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It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.
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You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.
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In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.
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An "ethical code of ICANN" is far, far beyond the mandate and scope of this subgroup.  Our task is to provide a framework for interpreting the Bylaw.
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It is good to work on an idealistic world but we have to realistic, too.
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That I can agree with.
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Best, Erich Schweighofer
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Greg
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-----Ursprüngliche Nachricht-----
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Von:  <mailto:ws2-hr-bounces@icann.org> ws2-hr-bounces@icann.org [ <mailto:ws2-hr-bounces@icann.org> mailto:ws2-hr-bounces@icann.org] Im
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Auftrag von Niels ten Oever
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Gesendet: Dienstag, 27. September 2016 11:18
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An:  <mailto:ws2-hr@icann.org> ws2-hr@icann.org
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Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC
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Dear all,
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Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.
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Comments and suggestions are welcome.
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1. Administrivia
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Roll call, absentees, SoIs, etc
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2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding
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Principles 15, 13, 19 3. AOB
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Best,
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Niels
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--
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Niels ten Oever
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Head of Digital
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Article 19
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