Looking at it again, I agree with your interpretation. The Bylaw says it shall not be interpreted to create any obligations beyond those found in applicable law. So I guess that an HRIA would be a completely voluntary exercise. So here we are in the realm of suggesting things within the subteam that are not actually part of a Framework of Interpretation for the ByLaw itself? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D2561C.BFDC8920] 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: Wednesday, December 14, 2016 3:03 PM To: Aikman-Scalese, Anne Cc: León Felipe Sánchez Ambía; ws2-hr@icann.org; ccwg-accountability5@icann.org; mssi-secretariat@icann.org Subject: Re: [Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human Rights questions The point is that the Bylaw can only require what is required by applicable law. So unless there's a determination that "respecting" human rights within the bounds of applicable law requires an HRIA, a failure to conduct an HRIA could not be a violation of the Bylaw. And I see no basis for such a determination. Greg [https://docs.google.com/uc?export=download&id=0B90h5wcghspFRXc1T05BaVZVbjg&r...] Gregory S. Shatan | Partner McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873 C: 917-816-6428 F: 212-416-7613 gshatan@mccarter.com<mailto:gshatan@mccarter.com> | www.mccarter.com<http://www.mccarter.com/> BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Wed, Dec 14, 2016 at 4:59 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thanks Greg. I certainly did not mean that the HRIA would be required by applicable law. I think it is clear that it is not. I was discussing the meaning of the word “respect”, not the meaning of applicable law. My question was whether the Board could be accused (in the context of Ombudsperson or Empowered Community action, for example) of violating the Bylaw itself by failing to conduct an HRIA – in other words whether failure to conduct an HRIA constitutes a failure to “respect” Human Rights and separately, if an Expert Report on Human Rights Impact were commissioned, would the Board be subject to an IRP if it did not follow every recommendation in such a report. This is back to the notion of analyzing what our recommendations and our language may mean in terms of practical consequences. But in this case, the hypothetical that is given, the HRIA, is relative to “respect” not to “applicable law”. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:(520)%20629-4428> office 520.879.4725<tel:(520)%20879-4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image004.png@01D2561C.BDB34080] 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<mailto:gregshatanipc@gmail.com>] Sent: Wednesday, December 14, 2016 2:54 PM To: Aikman-Scalese, Anne Cc: León Felipe Sánchez Ambía; ws2-hr@icann.org<mailto:ws2-hr@icann.org>; ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>; mssi-secretariat@icann.org<mailto:mssi-secretariat@icann.org> Subject: Re: [Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human Rights questions Anne, In my view, the short answer to your questions is that a Human Rights Impact Assessment is not required by applicable law. Thus, the bylaw could not be violated if ICANN did not undertake a HRIA. If ICANN adopted a policy requiring an HRIA under certain circumstances and then violated that policy, that would still not violate the Bylaw, since applicable law doesn't require an HRIA. So that policy violation would be dealt with in whatever way a policy (but not a Consensus Policy) violation would be dealt with. Right now, the HRIA idea is barely sketched out. I'm guessing there are other sources to use a platform for constructing such an assessment, but many choices would need to be made and significant work done, if an HRIA were to be put on ICANN's plate. I'm still far from convinced that it is within the remit of this group to even raise the concept of the HRIA; I'm still trying to figure that out. Greg [https://docs.google.com/uc?export=download&id=0B90h5wcghspFRXc1T05BaVZVbjg&r...] Gregory S. Shatan | Partner McCARTER & ENGLISH, LLP 245 Park Avenue, 27th Floor | New York, New York 10167 T: 212-609-6873<tel:(212)%20609-6873> C: 917-816-6428<tel:(917)%20816-6428> F: 212-416-7613<tel:(212)%20416-7613> gshatan@mccarter.com<mailto:gshatan@mccarter.com> | www.mccarter.com<http://www.mccarter.com/> BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC On Wed, Dec 14, 2016 at 3:51 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thank you Leon. It is good to know that ICANN Legal believes the draft definition of “applicable law” is accurate, although it may have been helpful to have more information on the laws that apply due to ICANN’s status as a California non-profit corporation. I do consider that there are laws that apply outside the U.S. to California non-profits who are doing business abroad, most notably by way of having opened offices in those jurisdictions. Regarding the word “respect”, ICANN Legal states that the primary meaning of this word is that ICANN has no obligation to enforce Human Rights as against third parties. So we still need to determine as a subgroup what this word might require that is short of enforcement. For example, is the Bylaw violated if ICANN does not undertake a Human Rights Impact Assessment? Who decides the scope of that assessment and how much it should cost? Is the assessment meant to be part of a Human Rights policy development process or is it in the form of an “Expert Report” delivered to the ICANN Board? What happens if the ICANN Board does not take action based on each recommendation made in such an Expert Report? Is ICANN then subject to administrative and judicial proceedings for failing to do so? Are directors subject to removal for violating the Bylaw? (How are these risks to be addressed in recommendations coming from our subteam?) I personally cannot answer these questions but wanted to raise them by way of example since the document we are working on at present refers to this specific Human Rights Impact Assessment tool. Would failure to conduct an HRIA mean that ICANN is failing to respect Human Rights? What if the community disagrees with an Expert HRIA report provided to the Board on this subject? As previously stated, I believe that the applicable definition of “respect” in this Bylaw falls somewhere in the realm of “to fully consider and balance Human Rights considerations among each other and as against other Core Values when making policy”. In light of some previous comments I have made, I also wanted to mention that I looked back at the Objection Procedures for new gTLDs and realized that Human Rights is a listed basis for the Limited Public Interest Objection. Thus, when we consider how the new Bylaw and HR-FOI interact with existing ICANN processes, we may need to look specifically at the Limited Public Interest Objection Procedure. Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:(520)%20629-4428> office 520.879.4725<tel:(520)%20879-4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D2561C.BDB34080] 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 León Felipe Sánchez Ambía Sent: Tuesday, December 13, 2016 7:05 PM To: ws2-hr@icann.org<mailto:ws2-hr@icann.org>; ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>; mssi-secretariat@icann.org<mailto:mssi-secretariat@icann.org> Subject: [Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human Rights questions Dear Niels and HR subgroup members. I'm forwarding the replies from ICANN legal to the HR questions. These replies haven't been reviewed by the legal committee but in order to expedite processes we can review in parallel. If you have any comments or questions, we will be happy to help. Kind regards, León Enviado desde mi iPhone Inicio del mensaje reenviado: De: Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Fecha: 13 de diciembre de 2016, 7:59:40 PM CST Para: León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, John Jeffrey <JJ@ICANN.org<mailto:JJ@ICANN.org>> Cc: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>>, "MSSI Secretariat" <mssi-secretariat@icann.org<mailto:mssi-secretariat@icann.org>> Asunto: Re: [EXTERNAL] Re: Request for input on Human Rights questions Dear Léon, Here are ICANN’s responses: As part of the CCWG-Legal Committee works, we hereby request for your answers to the following questions related to the HRs subgroup: 1. With respect to ICANN legal’s understanding of the definition of “applicable law”: a. Has ICANN legal developed an understanding of the meaning of the term “applicable law”? Yes. ICANN’s understanding of the term “applicable law” is largely consistent with the CCWG WS2 Sub-Team on Human Rights excerpt that is found below. Applicable law could also mean laws that are applicable and binding upon others, and not just ICANN, based on the facts and circumstances of any individual situation. Applicable law can also be agreed upon by parties to a contract, such as identifying what law will apply in the event of a dispute. b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? The concept of “applicable law” does not change dependent upon whether the term is used in Bylaws or elsewhere. c. Would the following definition of “applicable law,” currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: <quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. </quote> d. Please share the applicable understanding(s). See above. 2. In the view of ICANN legal, what does the term “Respect” mean according to the bylaws (in relation to Core Values)? As supported through the CCWG-Accountability WS1 conversations, “respect” denotes that ICANN is not in an enforcement role, but that – as ICANN does today – respects the laws and regulations to which it is bound and acts within them. 3. In the view of ICANN legal, what is the relationship between core values and commitments in general; and the HR core value and commitments in particular? The ICANN Bylaws are clear on the relationship between core values and commitments: "(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." It should be noted that to the extent the HR Core Value relies on ICANN adhering to relevant obligations of applicable law, ICANN is not authorized to violate laws. 4. In the view of ICANN legal, how does the balancing process between core values, as described in the bylaws, take place? Is it documented? There is not yet a documented process for the balancing of core values, however ICANN continues to refine its practice of producing rationales in support of decisions of the Board that identify the core values guiding a particular decision. Community groups producing recommendations for the Board to consider are also encouraged to begin documenting the core values supporting their recommendations. It is important to note that many of the items identified under the revised core values section are well integrated across all of ICANN’s work today, for example, the recognition of where ICANN’s policy roles start and stop; and seeking and supporting diverse participation in policy development at ICANN. As set out in the Bylaws, ICANN is always striving to achieve a reasonable balance between the interests of different stakeholders, which could impact how competition in the registration of domain names is introduced and promoted, for example. As discussed above, the balancing test cannot be used to support an outcome in violation of applicable laws. — Samantha Eisner Deputy General Counsel, ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, California 90094 USA Direct Dial: +1 310 578 8631<tel:(310)%20578-8631> From: León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Date: Monday, December 12, 2016 at 5:59 AM To: Samantha Eisner <samantha.eisner@icann.org<mailto:samantha.eisner@icann.org>>, John Jeffrey <JJ@ICANN.org<mailto:JJ@ICANN.org>> Cc: "ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org<mailto:ccwg-accountability5@icann.org>>, MSSI Secretariat <mssi-secretariat@icann.org<mailto:mssi-secretariat@icann.org>> Subject: [EXTERNAL] Re: Request for input on Human Rights questions Dear Sam and John, I believe we have not had either confirmation of reception nor reply to the questions below. If you have in fact replied, I might have missed it. Could you please update us on the status of the replies for these questions? When can we expect to have the answers? As you may be aware we have a plenary call tomorrow and this will be an agenda item so we appreciate any information you can provide. Best regards, León El 30/11/2016, a las 09:24, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> escribió: Dear John and Sam, As part of the CCWG-Legal Committee works, we hereby request for your answers to the following questions related to the HRs subgroup: 1. With respect to ICANN legal’s understanding of the definition of “applicable law”: a. Has ICANN legal developed an understanding of the meaning of the term “applicable law”? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of “applicable law,” currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: <quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. </quote> d. Please share the applicable understanding(s). 2. In the view of ICANN legal, what does the term “Respect” mean according to the bylaws (in relation to Core Values)? 3. In the view of ICANN legal, what is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. In the view of ICANN legal, how does the balancing process between core values, as described in the bylaws, take place? Is it documented? Saludos, As the answers to these questions will enable to continue the work of the Human Rights sub-group on different topics, we would kindly ask to have an answer to them at your earliest convenience. Kind regards, León ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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