Agree with Greg, this discussion is related to the document on what was agreed in the Ws1 (it was recently finalised by the team of volunteers and everyone can access it). We had quite a heated debate in the WP4, and there was a general agreement that we can't adopt a definition of "respect" from Ruggie - partially this is why the bylaw is dormant and we need a framework of interpretation. The part (b) of the Ruggie definition raised serious concerns about protection and enforcement. I hope Paul Twomey can later intervene this discussion and repeat his concerns again, but we might have a look at the transcripts from WS1, I remember that on one of the calls he made a clear statement about Ruggie. The comments in the Google documents on WS1 and FoI refer to this debate. At the same time, I express my support to the idea that we are better to follow the same language we used before (and that is in the CCWG report and the bylaw), meaning that we use the words "respect", "protect" and "enforce" in order to avoid confusions. However, answering the question of what respect, protect and enforce mean for ICANN is exactly one of the tasks of this group. Warm regards Tatiana On 06/09/16 17:43, Greg Shatan wrote:
Paul,
My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.
Greg
On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:
Good question
Jorge
*Von:*ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Dienstag, 6. September 2016 17:35 *An:* 'Greg Shatan' <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>; 'Nigel Roberts' <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Betreff:* Re: [Ws2-hr] When should ICANN uphold human rights?
Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?
P
Paul Rosenzweig
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*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 *Greg Shatan *Sent:* Tuesday, September 6, 2016 10:58 AM *To:* Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:
1. The Bylaw uses the verb "respect."
2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.
3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."
4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).
5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:
a. End up with a definition of "respect" that varies from the Ruggie Principles, or
b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.
6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.
Greg
On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.
It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.
I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.
Re-definition, is not the way forward, I suggest.
On 06/09/16 03:12, Greg Shatan wrote:
A few quick comments on the thread above.
It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.
As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.
I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:
(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.
As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.
I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.
Greg
On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org <mailto:jcurran@istaff.org>
<mailto:jcurran@istaff.org <mailto:jcurran@istaff.org>>> wrote:
On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>
<mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>>> wrote:
... 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.
Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.
Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...
ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.
/John
Disclaimer: my views alone. Feel free to use, share, or discard as desired.
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