Dear all, See below my message from last week where I give some additional context on the proposal circulated to the CCWG (see further below my Email from Sept. 28) intended to bridge the difference between the dissent and the HR-Subgroup proposal. I would very much appreciate a discussion on the specific text being proposed in a spirit if compromise. kind regards Jorge ________________________________ Von: Jorge.Cancio@bakom.admin.ch <Jorge.Cancio@bakom.admin.ch> Datum: 29. September 2017 um 11:42:03 MESZ An: accountability-cross-community@icann.org <accountability-cross-community@icann.org>, paul.twomey@argopacific.com <paul.twomey@argopacific.com>, turcotte.bernard@gmail.com <turcotte.bernard@gmail.com> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Paul, and dear all, Paul, thank you for your clarity. However, I feel that these concerns you mention and which you brought forward, if my recollection is right, during work stream 1 (now it seems ages ago…) have IMO been taken care by the adopted Bylaws themselves – a compromise proposal that we sturdily helped to pass at the end of work stream 1, accepting that such precautions were needed to address such general concerns. But now we are at the beginning of the end of work stream 2. The Bylaw that was passed as a result of the Marrakech agreements took care of such general caveats by, inter alia, the following measures: (1) it configures the HR clause as a “core value”; (2) the core value is just guiding; (3) it is subject to the core value balancing test; (4) core values yield to what is established in the commitments; (5) the core value has to be applied strictly within the Mission of ICANN; (6) the core value itself establishes that in applying the HR ICANN is bound only to what is required by “applicable law”, that it is bound by the Mission, that it cannot enforce HR obligations – for itself or for third parties; etc. Btw, I’m not sure how the potential actions you describe would fit into ICANNs narrow Mission. Here is the Core Value text again for the convenience of all: “Subject to the limitations set forth in Section 27.2, within the scope of its Mission and other Core Values, respecting internationally recognized human rightsas required by applicable law. This Core Valuedoes not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, orbeyond obligations found in applicable law. This Core Valuedoes not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.” The FoI and the Considerations document flesh out and further specify many of these belts and suspenders that "protect" against any overexpansion of the HR core value. It goes without saying that the text I proposed does not change any of the Bylaw provisions. And it fits well into the FoI (and considerations) document, which is only complemented with two sentences. As said before, there is no contradiction with the “considerations”, as those refer to the application of the UNGP toall of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we propose only refers to ICANN “Organization” and not to SO/ACs. As to these two sentences that I have proposed, they make two things: · First, there is a mention, amongst the international instruments, of the UNGP: “The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations.” As I explained below this is a statement of fact that should not be problematic. The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. ICANN has, as many have said here, business organization aspects – I may well accept to nuance it as Avri proposed (“not-profit business organization”, I think) – so it is a relevant instrument. · Then, the proposed text says that ICANN “the Organization” should consider the UNGP as a “useful guide”: “Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ This text builds in additional safeguards to avoid any danger whatsoever of extension of the UNGP to the non-business elements of ICANN (SO/ACs) as there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” when applying the core value. Therefore, I would be thankful if we discussed the specific text proposals and, in a spirit of compromise, we made concrete proposals that would address specific and factual concerns arising from the proposed two sentences. After all this is a proposal. At the same time, as said, this is an intended common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Thanks all for your consideration and kind regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com; accountability-cross-community@icann.org Betreff: Re: AW: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Thanks Jorge At this late stage let me be somewhat blunt to be clear. The sort of language in the Ruggie Principles which worry me is: 13. The responsibility to respect human rights requires that business enterprises: … (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. 15. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. My concern is not to ensure that ICANN can continue to coordinate with all the relevant technical organizations around the world (many of which are government run) which enable the operate of the Domain Name System, the IP address allocation and the Protocol Parameter responsibilities of the IANA functions. Just to give one example, let us look at ccTLD operators. ICANN does have a range of agreements within around 86 ccTLD operators, (See: https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we intend to establish wording which would result in dissident groups from various countries going to a US court arguing that ICANN is in breach of its bylaws by having an explicit or implied agreement with a ccTLD operator recognized as part of the IANA process, especially where the dissident group alleges that the ccTLD operator is breaching human rights by following its government’s instructions on registrations. You can think of several examples where this may happen. Having the sections above applying to ICANN (even where it operates as a business) would put at risk ICANN’s ability to be a global coordinator as per its mission. By definition, it has to be able to serve every ccTLD. Furthermore, any court or other group thinking that ICANN should under principle 15 take action to remediate the adverse human rights impact would have to consider ICANN breaking off links with that ccTLD. Which brings me back to my global coordinator challenge. I hope this helps Paul On 9/28/17 5:07 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Paul, I would appreciate your being more specific, and elaborating what wording in my proposal gives rise to such fears, and what is exactly which is so distinct from the prior FoI text. For your convenience, here is again the proposed change in red: “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ Thanks for your help in understanding your position. Regards Jorge Von: Paul Twomey [mailto:paul.twomey@argopacific.com] Gesendet: Donnerstag, 28. September 2017 23:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch>; turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Dear Jorge I have to say that I agree with Greg on this. My interventions on the HR working group have consistently focused on the ability of ICANN to operate its IANA and other technical functions under policy and/or numerous agreements with numerous technical bodies (such as ccTLD operators, Root Zone operators etc) in support of a global, interoperable Internet. The wording you propose would in my view put this at risk - as I have point several times over the last years the Rugge Principles, especially as those principles which apply to supply chains and contractors, are well suited to a mining company which can decide whether or not to do business in certain circumstance in certain countries. ICANN does not have that luxury. It is charged with supporting a Global Internet and hence has to be able to deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many of which it has agreements. In that sense ICANN is not like a private company at all. Paul On 9/28/17 4:38 PM, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote: Dear Greg, dear all, The UNGP are an international instrument endorsed by the United Nations. As other declarations mentioned in the FoI, it is not as such a legally binding document, but it was unanimously endorsed in 2011 by the United Nations Human Rights Council through a formal resolution. Therefore, locating it under instruments makes sense. There is no contradiction with the “considerations”, as those refer to the application of the UNGP toall of ICANN in general. In contrast, and taking into consideration the concerns expressed by some in the Subgroup, the text we proposeonly refers to ICANN “Organization” and not to SO/ACs. This is a common ground proposal that differs, by being significantly less ambitious, from the public comment proposals filed by the Governments of Switzerland, UK and Brazil – which have at various time been supported by a number of other countries and participants. Therefore, I hope that the CCWG Plenary will work on a CCWG broader consensus text on this basis, giving consideration and being inclusive of at least a minimal part of the named public comment inputs. Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Donnerstag, 28. September 2017 22:12 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch><mailto:Jorge.Cancio@bakom.admin.ch> Cc: Bernard Turcotte <turcotte.bernard@gmail.com><mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences Unfortunately, I cannot support this suggestion. First, this statement is partially redundant of and partially contradicts another section of the Report, under "Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw": With regards to the UN Guiding Principles for Business and Human Rights, no consensus was reached as to their suitability for interpreting the Core Value. However with regard to the implementation of the Core Value certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value. There are certain Guiding Principles that may not be suitable for ICANN and others that might be applicable, depending on the circumstances. However, it is beyond the scope of this document to provide a detailed analysis of the Guiding Principles and their application, or not, in particular situations. In any case, a conflict between any Guiding Principle and an ICANN Bylaw provision or Article of Incorporation must be resolved in favor of the Bylaw or Article. The use of the Guiding Principles as potential guidance has to be carefully considered by each SO and AC as well as ICANN the organization. The suggested language absolutely contradicts the conclusion that " With regards to the UN Guiding Principles for Business and Human Rights, no consensus was reached as to their suitability for interpreting the Core Value. ​" This was carefully balanced language, in itself a compromise. Further the language goes on to indicate how the UNGP could be considered during implementation of the Bylaw. ​ ​With the conclusion that no conThis section, for which no revision is suggested, states quite appropriately why the UNGP should be treated as it is in the report. ​Second, this is being inserted into the interpretation of the term "internationally recognized human rights ​​ " ​ as stated in the Core Value.​ ​ This is troublesome. The UNGP is not a human rights declaration, so it should not be mentioned here. Aside from covenants and declarations, this section of the FoI discusses only international law. So the UNGP does not belong here. Also, the proposal would drop this statement into the middle of a discussion of international human rights instruments (which apply to states, not to ICANN), completely disrupting the analysis. Unfortunately, we were not supplied with the entire text, which would have made this more clear. Here it is, without the suggested addition: There are a range of international human-rights declarations and covenants that could be relevant to ICANN’s Human Rights Core Value. However, none of these instruments has a direct application to ICANN, because they only create obligations for States. By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The reference to “internationally recognized human rights” in the bylaw should not be read in isolation; rather it must be considered together with, and limited by, the reference “as required by applicable law.” As a consequence, under the Human Rights Core Value, international human rights instruments are not directly applicable to ICANN beyond what is provided for in applicable law. Rather, only those human rights that are “required by applicable law” will be relevant to ICANN. Furthermore, depending on the jurisdiction in which ICANN operates, the law applicable to its operations may vary and thus the human rights applicable to ICANN’s operations will vary as well. Nevertheless, ICANN understands that internationally recognised human rights, including those expressed in the Universal Declaration of Human Rights, can guide its decisions and actions. ​Finally, I will note my view that the Subgroup fully, fairly, comprehensively and inclusively considered all of the Public Comments and held numerous discussions on this very topic. As such, I think that without persuasive arguments on substance, sufficient to convince the Plenary to take a different view, there is no reason to change the Report. On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, Further to my Email below, I would like to share with you the following proposal that would constitute in my view an acceptable outcome of the public consultation on the Framework of Interpretation, and build on the wording proposals made by Switzerland in its public comment input (see attached) and the exchanges had thereafter in the Subgroup. Specifically, I would like to propose that the following paragraph on page 6 (under “internationally recognized human rights”) be reworded as follows (changes in red): “By committing to one or more of these international instruments, nation states are expected to embed human rights in their national legislation. The UN Guiding Principles on Businesses and Human Rights are relevant for business organizations. Insofar ICANN the Organization is concerned, it should consider, as a business, the UN Guiding Principles on Businesses and Human Rights as a useful guide when applying the Human Rights Core Value.“ The UN Guiding Principles on Businesses and Human Rights (UNGP) are the universally accepted voluntary standard for business organizations. Therefore, we feel that it should be mentioned under the instruments regarding “internationally recognized human rights”. In order to avoid any extension of the UNGP to the non-business elements of ICANN (SO/ACs) there is specific mention that the UNGP would be relevant only for ICANN the Organization. In addition, the mention is constrained to having to “consider” the UNGP “as a useful guide” – which, in our view, eliminates any perceived danger of creating any obligation whatsoever through this mention. I hope that this compromise proposal may be positively considered by all of you. Please note that it is made only by me with the aim of arriving at a common ground and that it has not been possible to coordinate due to time constraints with the other participants joining the dissent. Best regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>]Im Auftrag von Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Gesendet: Montag, 25. September 2017 15:34 An: turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 Dear all, Regardingagenda point 8 and specifically the dissenting opinion attached to the Report from the Subgroup dealing with the Framework of Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the attached document), which I have filed together with a number of colleagues, I would like to share some thoughts and a suggested path forward with the CCWG Plenary before the calls scheduled to discuss this. The main point of the dissent is, in my view, that we feel that the public comment period showed the existence of two schools of thought: some that favored maintaining the text sent to public comment “as is” (ALAC to a certain extent, and a number of different GNSO constituencies) and those (UK, BRZ, and CH) proposing some steps forward, especially in the recognition of the UN Guiding Principles (Ruggie Principles). However, again in our view, the discussions in the Subgroup did not yield a properly balanced result, which would have reflected at least some if not all of the positions and proposals made by the named Governments. This relates in particular,that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. In our view, the Subgroup did not undertake an inclusive enough effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Therefore, I would like tosuggest that the CCWG Plenary could decide that some additional efforts to reaching a broader consensus on this important issue should be made – a broader consensus that could be more inclusive of all views expressed during the public comment period. Hence, I wouldsuggest that the CCWG decides that the Report together with the dissent are sent back to the Subgroup with the request that a broader consensus solution is quickly sought within the coming e.g. 2 weeks after the Plenary call. I hope this way to proceed may seem reasonable to you and obtain your support during the abovementioned call. I would be happy to answer any questions you may have and look forward to your feedback. For my part I’ll try hard to attend the Wednesday call, but I’m (physically) attending at the same timethe UN CSTD Working Group on Enhanced Cooperation. Hence, I would be very thankful if this issue could be discussed on the Thursday call instead if possible. Kind regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org]Im Auftrag von Bernard Turcotte Gesendet: Donnerstag, 21. September 2017 18:05 An: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 All, Please fins below and attached the agenda for the 27-28 September plenary. As noted in an earlier email the Co-Chairs do not believe the plenary can get through all of these materials in a single two hour session and that it is imperative we do so this week given the timing constraints we are working under. As such an additional 2 hour plenary session has been added 28 September 1900 UTC (the original plenary meeting scheduled for 27 September 1300 UTC still stands). Also please note that given the large volume of documents we will be including these in two separate emails to avoid size limit issues for participants. Please do not hesitate to contact me if you have any questions or problems with the documents. Bernard Turcotte ICANN Staff Support to the CCWG-Accountability-WS2 Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September 1. Introduction, update to SOIs, reminder on standards of behavior 2. Review of Agenda 3. Administration 3.1. Review timeline. 3.2. Reminder of 27 October face to face in Abu Dhabi. 3.3. Reminder of High Interest sessions in Abu Dhabi 4. Legal Committee Update 4.1. ​ Question sent to ICANN Legal on Ombudsman recommendation 8 regarding the independence of the proposed Ombuds Advisory Panel (questions sent directly to ICANN legal on approval of Co-chairs). 4.2. Transparency – at the 13 September meeting of the sub-group updated language for recommendations 2, 15 and 16 were considered. ICANN Legal advised that they would consider these and provide written feedback to the sub-group. 5. Point on Quorum (held over from last plenary) 6. Second Reading of the draft recommendations of the Diversity sub-group. * CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927 (attached - same document as distributed to the 30 August plenary) 7. First reading of the final recommendations of the SOAC Accountability sub-group. * CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927 (attached) * CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927 (attached) 8. First reading of the final recommendations of the Human Rights sub-group. * CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927 (attached) * CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses (attached) 9. First reading of the draft recommendation of the Ombuds sub-group (please note that the final report of the external review is provided as a separate file due to size issues) * CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927 (attached in second email) * CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached in second email) 10. First reading of the draft recommendation of the Staff Accountability sub-group. * CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in second email) * CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927 (attached in second email) 11. AOB 12. ​Next Plenaries 12.1. Thursday 28 September 19:00UTC​ 12.2. Wednesday 4 October 0500 UTC (optional but please schedule) 12.3. Wednesday 11 October 1300 UTC (optional but please schedule) 12.4. Wednesday 18 October 1900UTC 13. Adjournment _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com> -- Dr Paul Twomey Managing Director Argo P@cific US Cell: +1 310 279 2366 Aust M: +61 416 238 501 www.argopacific.com<http://www.argopacific.com>