Thanks Greg. I thought Samantha was saying it is a Commitment “for which the balancing test has changed” and “The balancing test now requires that all of the commitments be met…” Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D2132B.F0F5D590] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Tuesday, September 20, 2016 10:40 AM To: Aikman-Scalese, Anne Cc: Karen Mulberry; ws2-hr@icann.org Subject: Re: [Ws2-hr] FW: Proposed Agenda Call Sept 6 19:00 UTC Anne, Human Rights is in the Core Values section of the new Bylaws and is thus subject to the balancing test. Greg On Tue, Sep 20, 2016 at 1:34 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thanks Samantha. It seems the most important “takeaway” is: The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other. You mention human trafficking. What are the implications for ICANN being asked to award a registry contract in an application for a Top Level Domain .legalizesexslaves. Are you advising there is no longer a “balancing” act when considering this application and ICANN must deny the award of the registry contract? (Or are you saying that this would be beyond mission and scope (since ICANN is not a content regulator), and therefore there is no Commitment operating and no obligation to consider Human Rights?) I ask this because the Ruggie principles we are examining would require ICANN to avoid adverse impact to Human Rights in all its business relationships. Clearly the primary business relationship of ICANN is to enter into contracts awarding registries. Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:520.629.4428> office 520.879.4725<tel:520.879.4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image004.png@01D2132B.F0D9C210] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Karen Mulberry Sent: Tuesday, September 20, 2016 10:19 AM To: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: [Ws2-hr] FW: Proposed Agenda Call Sept 6 19:00 UTC On behalf of ICANN Legal Karen Mulberry Multistakeholder Strategy and Strategic Initiatives ICANN From: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Date: Tuesday, September 20, 2016 at 11:01 AM To: Karen Mulberry <karen.mulberry@icann.org<mailto:karen.mulberry@icann.org>> Subject: FW: [Ws2-hr] Proposed Agenda Call Sept 6 19:00 UTC Can you please provide this to the HR subgroup? Dear HR-Subgroup members, I understand that the question posed was "'What is the rationale for the addition of 'core values' to the ICANN bylaws, and what are its legal and non-legal implications in your opinion, especially for the human rights bylaw?” The Core Values have historically been part of the ICANN Bylaws, introduced after the ICANN evolution and reform effort in 2002, https://www.icann.org/en/about/governance/bylaws/bylaws-15dec02-en.htm. From 2002 through the Bylaws as they exist today, the Core Values remained unchanged, with the following as guidance for the application of Core Values: "These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.” With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other. The inclusion of the Human Rights commitment as a Core Value, which was expressly required in Annex 6 of the WS1 report, assures that it is an item that is considered while ICANN is performing its Mission. The implication of this is strong, particularly where the FOI considers how to guide the interpretation of this obligation. Of course, there are already legal obligations that are tethered to human rights obligations (for example, observing laws against human trafficking) that ICANN is already following. Given the long-standing nature of the Core Values section of the ICANN Bylaws, this is a key tool in guiding ICANN’s operations. They are part of a near 15-year history of ICANN acting within its Mission. If there are more specific questions that you have on this topic, please let us know. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631<tel:%2B1%20310%20578%208631> On 9/6/16, 11:47 AM, "ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> on behalf of Niels ten Oever" <ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> on behalf of lists@nielstenoever.net<mailto:lists@nielstenoever.net>> wrote: Dear Jorge, The question has been forwarded to ICANN legal and we are awaiting a response. Best, Niels On 09/07/2016 03:22 AM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Niels May I kindly request clarification on the status of our inquiry into the (legal) effects that the HR commitment we are talking about is a "core value"? According to the new Bylaws "core values" are “guidance” (“should also guide the decisions and actions of ICANN…”) and are subject to a specific balancing and interpretation clause: "(c) The Commitments and Core Values are intended to apply in the broadest possible range of circumstances. The Commitments reflect ICANN’s fundamental compact with the global Internet community and are intended to apply consistently and comprehensively to ICANN’s activities. The specific way in which Core Values are applied, individually and collectively, to any given situation may depend on many factors that cannot be fully anticipated or enumerated. Situations may arise in which perfect fidelity to all Core Values simultaneously is not possible. Accordingly, in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN’s Mission." I feel this is quite relevant for our discussions, as it sets the frame of the effect of the new HR "core value". Best and looking forward to your guidance and apologies if I have missed any relevant message on this issue Jorge -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 6. September 2016 00:19 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed Agenda Call Sept 6 19:00 UTC Dear all, Please find underneath and attached the proposed agenda for our call of Sept 6 19:00 UTC. Also please find attached a rather advanced version of the document mentioned under agenda point 2, the summary of the Human Rights work under Workstream 1. 1. Administrivia Roll call, absentees, SoIs, etc 2. Discussion on: the Summary on what was agreed and discussed on human rights during WS1 https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNMo... 3. Discussion on: Concerns on possible impacts of Human Rights bylaw and FoI https://docs.google.com/document/d/1KcKGRJjuhKEzCh2AZ8PPR_MofOQFBN8CMuJqTG_h... 4. Discussion on FoI draft document https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUOs... 5. AOB ICANN staff informed me that they are working on providing more real time collaboration methods, but currently they do not offer such services. So until that time I am afraid we are stuck with Google Docs. As always feel free to suggest addition or changes to the points above. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> <http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ 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. 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