All, With regard to the statement "However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments," I am still at a loss to understand what was not "inclusive" about the efforts of the Subgroup and in particular our Rapporteur, Niels ten Oever. Since the reference to the last drafting team was removed, I assume it was not the drafting team. Since the drafting team did most of its work on the main Subgroup list, was open to everybody (minor procedural flaws in the call for volunteers aside), and the drafting team's suggested changes were not even adopted, that seems like the right result. In any event there were ample opportunities to contribute suggested alternatives to the list -- the drafting team did not have a monopoly. If the drafting team isn't the issue, then what was the issue? The floor and the email list were open at all times to all participants in the Subgroup. No one in the Subgroup was excluded. The public comments were read, fully considered and extensively discussed. There is no presumption that any particular public comment or comments will result in a change to a draft Report. As such, while "Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses," there was no basis for that expectation. The consideration of public comments is too nuanced to reduce to simple rules, but I have observed that public comments that do result in changes tend to fall into the following categories: (1) suggestions that do not change the substance, but improve the expression, (2) comments that bring new facts to light, so that the basis of the recommendation is no longer accurate, or (3) multiple diverse comments that persuasively show the group that they got it wrong the first time and that they have missed the sense of the multistakeholder community. The comments in question, eloquent and well stated though they may have been, did none of the above. One category of public comment that has not been particularly effective, in my experience, is a comment from a group participant (or related participants) that seeks to accomplish a substantive change via comment what was not accomplished in the group. In part, this may be because it is not a new voice or viewpoint for the Subgroup. (Of course I understand that the participants here were individuals while the comments came from entities, but that is typical -- most participants do not file individual comments.) In any event, if the process was not the problem, what was the problem, aside from disappointment in the result -- that what was a minority position remained a minority position? I note that the dissent, although advertised as concentrating on substance, actually contains little substance, aside from the statement that "the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard." What's missing is a statement identifying the portion of the Subgroup report where the submitters did not join the consensus. (I am assuming that they are not dissenting from the whole of the document.) What's also missing is the actual "minority position" -- the text that the dissent would have supported if it had been in the Report. Without these elements, the dissent regrettably reads more like a complaint than a minority report. Finally, I would note that the formal predicate for including a minority report is that it comes from the Subgroup participants who did not join the group's consensus. As such, it seems out of order to include any submitters other than participants. I suppose we are being a little more relaxed, since this is merely CCWG business. However, if the dissent insists on including a minority report in the full CCWG report put out for public comments, I hope that the process will be honored. Best regards, Greg On Tue, Sep 26, 2017 at 9:31 PM, McAuley, David via Ws2-hr <ws2-hr@icann.org

wrote:

Dear co-chairs and all,

I plan to participate in the CCWG Plenary tomorrow, but it will be from a public setting where I will most likely be unable to comment other than by chat.

Thus, I wish to respond to Jorge’s email here (noting as well that I participated in the drafting team that is at the center of some of the concern that has lately arisen).

First, let me say that it has been a pleasure to be a part of the Subgroup on HR. The subgroup was very well led, and participants included serious, principled, and thoughtful individuals on all sides of the issues discussed.

With respect to the draft ‘dissenting opinion,’ it is, in my opinion, difficult not to embrace the public comments of the governments of Brazil, Switzerland, and the United Kingdom when it comes to HR.

Nonetheless, that is where I find myself on the narrow issue of making stronger reference to the Ruggie Principles (UN Guiding Principles on Business and Human Rights – UNGP) in the HR FOI and Considerations document.

The subgroup draft appears to me to be properly balanced by stating that certain aspects of the UNGP could be considered as a useful guide in the process of applying the Human Rights Core Value.

Under the UNGP, the responsibility to respect human rights requires that businesses, among other things, seek to mitigate adverse human rights impacts that are directly linked to their operations or services by their “business relationships,” even if they have not contributed to those impacts. This is one particular area of my concern when it comes to ICANN, which as a ‘business’ is unique.

“Business relationships” is a very broad term in the UNGP - including relationships with business partners, entities in its value chain, and any others directly linked to its business operations, products or services. That must include registrants, among others.

And while the UNGP try to accommodate various complexities, they still provide that If the business enterprise has leverage to prevent or mitigate the adverse impact, it should exercise it.

It seems to me this aspect of the UNGP could inappropriately force ICANN into content issues outside its narrow mission.

The new Core Value is a part of ICANN’s bylaws and as such is subject to IRP claims where potential claimants allege that ICANN violated the Core Value by its action or inaction. HR-based claims will almost inevitably wind up in front of the soon-to-be-constituted IRP panel. These (at least) seven new panelists will be drawn from legal circles independent of ICANN. There is simply no way to envision how they would interpret reference to the UNGP and no guarantee that this new precedent-setting body might not try to stretch ICANN’s mission to accommodate the UNGP. They will receive training on the DNS but we have no idea whether or to what extent they might appreciate ICANN’s unique mission, especially at the outset of their work where they will nevertheless have the power to set precedent.

In its eloquent public comment, the government of the UK remarked that absent a stronger reference to UNGP the ICANN community would effectively miss an opportunity “to be a global transnational beacon for advancing corporate respect for human rights.”

I respectfully disagree, thinking that ICANN has embraced that opportunity by explicitly adopting a core value aimed at respecting HR.

Given ICANN’s unique mission (and potential damage from mission-creep), its open and participatory community, and the newness of the IRP panel to come, there appears to be no demonstrable need to make reference to the UNGP at present, but downside-risk does seem possible. If the community in the future discerns that such a need has subsequently arisen, then steps can be taken at that time to consider such a reference as appropriately tailored to take account of ICANN’s uniqueness. By that time, presumably, the IRP panel will have taken shape and have become a little more predictable than it is at the moment.

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154 <(703)%20948-4154>

*From:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch *Sent:* Monday, September 18, 2017 5:46 AM *To:* ws2-hr@icann.org *Subject:* [EXTERNAL] [Ws2-hr] WG: dissenting opinion - final-final text for CCWG

For your information

Kind regards

Jorge

*Von:* Cancio Jorge BAKOM *Gesendet:* Montag, 18. September 2017 11:45 *An:* 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>; 'Thomas Rickert' <thomas@rickert.net>; 'Jordan Carter' <jordan@internetnz.net.nz> *Cc:* 'Niels ten Oever' <lists@nielstenoever.net>; 'Bernard Turcotte' < turcotte.bernard@gmail.com>; 'Arasteh' <kavouss.arasteh@gmail.com>; 'Mark Carvell' <mark.carvell@culture.gov.uk>; 'María Milagros Castañon Seoane' < mcastanon@rree.gob.pe>; 'Thiago Braz Jardim Oliveira' < thiago.jardim@itamaraty.gov.br> *Betreff:* AW: dissenting opinion - final-final text for CCWG

Dear co-chairs and all,

I note with appreciation the constructive and forward-looking Email Thomas Rickert sent on your behalf last week on the constitution of “drafting teams”.

In order to allow for an as constructive as possible discussion on the CCWG Plenary on September 27, I would like to file with you the following *amended version of our dissent*, which tries to focus only on the substantive issues that hopefully may be bridged during our discussions in the CCWG Plenary:

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

Hope this may be helpful.

Kind regards

Jorge

*Von:* Cancio Jorge BAKOM *Gesendet:* Mittwoch, 13. September 2017 08:35 *An:* León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Thomas Rickert < thomas@rickert.net>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* Niels ten Oever <lists@nielstenoever.net>; Bernard Turcotte < turcotte.bernard@gmail.com>; Arasteh <kavouss.arasteh@gmail.com>; Mark Carvell <mark.carvell@culture.gov.uk>; María Milagros Castañon Seoane < mcastanon@rree.gob.pe>; Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> *Betreff:* AW: dissenting opinion - final-final text for CCWG

Dear Co-Chairs and all,

For your convenience, here is the clean text version of the dissent we would like to be submitted to the Plenary for its consideration:

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitution, which contributed to having no Government representation on this team.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

Thanks again and regards

Jorge

*Von:* Cancio Jorge BAKOM *Gesendet:* Mittwoch, 13. September 2017 07:03 *An:* León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Thomas Rickert < thomas@rickert.net>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* Niels ten Oever <lists@nielstenoever.net>; Bernard Turcotte < turcotte.bernard@gmail.com>; Arasteh <kavouss.arasteh@gmail.com>; Mark Carvell <mark.carvell@culture.gov.uk>; María Milagros Castañon Seoane < mcastanon@rree.gob.pe>; Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> *Betreff:* dissenting opinion - final-final text for CCWG

Dear Co-Chairs

please find below for your convenience and in order to avoid any misunderstandings on the final text, the final version of the dissenting opinion we have filed for Plenary.

Kind regards

Jorge

------------------------------

*Von:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> *Datum:* 5. September 2017 um 12:33:00 MESZ *An:* Greg Shatan <gregshatanipc@gmail.com>, Aikman-Scalese, Anne < AAikman@lrrc.com> *Cc:* thiago.jardim@itamaraty.gov.br <thiago.jardim@itamaraty.gov.br>, ws2-hr@icann.org <ws2-hr@icann.org>, lists@nielstenoever.net < lists@nielstenoever.net> *Betreff:* AW: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary

Thanks to Greg for this thorough investigation to the origins of the „drafting team“. Apparently only the transcript of the call on August 8th provides some clarity on how the drafting team was constituted, as the agenda, the notes of the call, and the subsequent emails did not contain an open call for participating in such a drafting team.

Nonetheless, and recognizing that at least in the call itself there was such a call for forming the drafting team, I would like to slightly amend the dissenting opinion as follows:

==

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitutionopen invitation to participate in the drafting team, which contributed to having no Government representation on this team.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

==

Kind regards

Jorge

*Von:* Greg Shatan [mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>] *Gesendet:* Dienstag, 5. September 2017 08:21 *An:* Aikman-Scalese, Anne <AAikman@lrrc.com> *Cc:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; lists@nielstenoever.net; thiago.jardim@itamaraty.gov.br; ws2-hr@icann.org *Betreff:* Re: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary

All,

I think it would be helpful to review the course of events under discussion here and in the minority statement. I've taken the time to comb through the email list and the relevant meeting transcripts, and as far as I can determine, this is what took place. I'll provide this without further comment, but I hope it is useful to all members of the Subgroup.

1. Niels made a request for volunteers to join a drafting team on the August 8, 2017 Working Group call. Attendance records show that Kavouss Arasteh and Mark Carvell were on the call (the latter as an Observer). Three people on the call (David Macauley, myself and Tatiana Tropina) volunteered for the drafting team. Anne also apparently volunteered, but this was not noted in the call notes; this was subsequently clarified.

2. Almost directly after the call (or possibly even during the end of the call), Niels sent to the subgroup list an email with two versions of the paragraph in question ("Original text" and "Text proposed by me on the call"), and said "I am greatly looking forward to the suggestion of the drafting team."

3. Matthew Shears replied to that thread a couple of hours later and volunteered to be on the drafting team. Rudy Daniel, Anne Aikman-Scalese and Kavouss Arasteh also replied to that thread, with contributions. Rudy also sent a follow-on email with further observations; David responded to this.

4. Within a few hours after that, MSSI Secretariat sent an email to both the CCWG and ws2-hr lists with Action Items and raw captioning from the August 8 meeting. The second Action Item from the meeting was:

- *DM, GS, TT volunteer for drafting team for the two elements of text which were discussed on the call this week for consideration at the next meeting.*

5. The next day, David sent another email on the topic, again to the full subgroup list. Kavouss, Anne and Steve DelBianco all replied to this email, discussing various aspects and options for the text.

6. Meanwhile, Anne sent an email directly after the call with some thoughts on the language of this paragraph, to which there were numerous responses by eight different members of the subgroup (Kavouss, Tijani, Steve, Rudy, Brett, Bastiaan, Seun and David) over the next couple of days.

7. Members of the drafting team took note of these discussions on the list and then put together a suggested revised text to be discussed by the Subgroup.

8. On August 15, the date set to return a text to the list, David Macauley on behalf of the Drafting Team sent a suggested text to the full list for the Subgroup to consider. Brett and Anne (who had not yet seen the very final suggested text due to time zone differences) responded in support of the suggested text. Jorge and Kavouss responded, objecting to the suggested text.

9. There were also responses to Niels' agenda email to the list, commenting on the suggested text -- Brett, Matthew, Rudy, and Anne in support; Jorge and Kavouss objecting.

10. This suggested text was then discussed on the August 15 call. The decision on that call, as reported in the post-call email from MSSI Secretariat, was:

- The modifications proposed by the drafting team were not supported and as such are rejected. The original text used in the public consultation will be used.

​Only David Macauley and Tatiana Tropina were present from the drafting team. Anne, Matthew and I were unable to attend. Kavouss was on the call and participated actively in the discussion of the revised text. Mark Carvell was present as an Observer.

​11. ​At the following meeting on August 22, there was no further discussion of the drafting team's text. There was a second reading of the cover email to be sent to the Plenary with the Subgroup's report, including the language used to characterize the Subgroup's response to comments suggesting that the UNGP be expressly mentioned. There was also a lengthy discussion of procedural matters relating to the minority statement submitted by Jorge.

Best regards,

Greg

On Thu, Aug 31, 2017 at 1:24 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:

Thanks Jorge. You may recall that in one version of the revised “Considerations” language proposed by me on the list, I included a specific reference to ICANN the organisation using the assessment tool specified in Ruggie Principle 18(b). This suggestion was rejected by the rest of the drafting team. As far as I know, there were not separate drafting team calls and everyone participated on the list and proposed language on the general list.

I am not certain how the final language arose, but in the end I elected to support it. I do think that if either Kavouss or you as active members would have chosen to become drafting team members, the language might have been better.

Thank you

Anne

*Anne E. Aikman-Scalese*

Of Counsel

520.629.4428 <(520)%20629-4428> office

520.879.4725 <(520)%20879-4725> fax

AAikman@lrrc.com

_____________________________

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com

*From:*ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org]*On Behalf Of *Jorge.Cancio@bakom.admin.ch *Sent:* Thursday, August 31, 2017 9:04 AM *To:* lists@nielstenoever.net *Cc:* thiago.jardim@itamaraty.gov.br;ws2-hr@icann.org *Subject:* [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary

Dear Niels,

As anticipated, please find hereunder the final version of the dissenting opinion I would like to file to the report from the Subgroup:

==

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as there was no open invitation to participate in the drafting team, which contributed to having no Government representation on this team.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

==

Thanks for including it in the final report to be transmitted to the CCWG Plenary for its consideration.

Kind regards

Jorge

*Von:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>]*Im Auftrag von *MSSI Secretariat *Gesendet:* Mittwoch, 30. August 2017 00:54 *An:* CCWG Accountability <accountability-cross-community@icann.org> *Cc:* ws2-hr@icann.org *Betreff:* [CCWG-ACCT] Recordings, DAIRs, Raw Caption Notes for Human Rights Subgroup Meeting #32 | 29 August 2017

Hello all,

You may find the recordings,*D*ecisions, *A*ction *I*tems, *R*equests (DAIRs), and raw caption notes for CCWG Accountability WS2*Human Rights Subgroup - Meeting #32 *– *29 August 2017* posted at https://community.icann.org/x/LwIhB

The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call).

A copy of the DAIRs and raw caption notes may be found below.

Thank you.

Kind Regards,

*Yvette Guigneaux*

*(MSSI) Multistakeholder Strategy & Strategic Initiatives *

Projects & Operations Assistant.

*ICANN – Internet Corporation for Assigned Names and Numbers*

Email: yvette.guigneaux@icann.org

Cell: +1-310-460-8432 <(310)%20460-8432>

Skype: yvette.guigneaux.icann

www.icann.org

*Raw Captioning Notes*

*Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. *

· *Word Doc <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%20Human%20Rights_%20Meeting%2032_%2029AUG17.docx?version=1&modificationDate=1504045965699&api=v2>*

· *PDF <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%20Human%20Rights_%20Meeting%2032_%2029AUG17.pdf?version=1&modificationDate=1504045991224&api=v2>*

*Decisions: *Decision taken to proceed with submitting the revised report for CCWG-Plenary’s consideration.

*Action Items: *NTO to submit the revised report for CCWG-Plenary’s consideration.

*Requests: *Members of the subgroup are seeking clarification on who has rights to file a Minority Statement, per the CCWG charter, and what has been done in the past:

· Has an Observer filed a Minority Statement in CCWG Accountability before?

· Has anyone who wasn't an official Member (appointed from an SOAC) filed a Minority Statement in CCWG before?

· What the CCWG Charter say about who has rights to file a Minority Statement?

*Documents -Revisions to HR Subgroup email to CCWG Plenary <https://community.icann.org/download/attachments/69272111/Revisions%20to%20HR%20Subgroup%20email%20to%20CCWG%20Plenary%5B1%5D.pdf?version=1&modificationDate=1504013260000&api=v2>*

------------------------------

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Thomas, While it’s true this has been discussed at length, I am concerned that the statement as it stands implies that Niels somehow failed to manage an inclusive process in the Subgroup. This is untrue. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D3375E.8E6F2AE0] 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] On Behalf Of Thomas Rickert Sent: Tuesday, September 26, 2017 10:57 PM To: Greg Shatan Cc: Thomas Rickert; ws2-hr@icann.org Subject: Re: [Ws2-hr] dissenting opinion - final-final text for CCWG Hi Greg, all, Thanks for your message. With respect to the minority report. We have discussed the issue, both substance as well as procedure at length. Subsequently, the process point has kindly been edited by Jorge. I suggest we let that point rest now. Best, Thomas Am 27.09.2017 um 05:07 schrieb Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: All, With regard to the statement "However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments," I am still at a loss to understand what was not "inclusive" about the efforts of the Subgroup and in particular our Rapporteur, Niels ten Oever. Since the reference to the last drafting team was removed, I assume it was not the drafting team. Since the drafting team did most of its work on the main Subgroup list, was open to everybody (minor procedural flaws in the call for volunteers aside), and the drafting team's suggested changes were not even adopted, that seems like the right result. In any event there were ample opportunities to contribute suggested alternatives to the list -- the drafting team did not have a monopoly. If the drafting team isn't the issue, then what was the issue? The floor and the email list were open at all times to all participants in the Subgroup. No one in the Subgroup was excluded. The public comments were read, fully considered and extensively discussed. There is no presumption that any particular public comment or comments will result in a change to a draft Report. As such, while "Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses," there was no basis for that expectation. The consideration of public comments is too nuanced to reduce to simple rules, but I have observed that public comments that do result in changes tend to fall into the following categories: (1) suggestions that do not change the substance, but improve the expression, (2) comments that bring new facts to light, so that the basis of the recommendation is no longer accurate, or (3) multiple diverse comments that persuasively show the group that they got it wrong the first time and that they have missed the sense of the multistakeholder community. The comments in question, eloquent and well stated though they may have been, did none of the above. One category of public comment that has not been particularly effective, in my experience, is a comment from a group participant (or related participants) that seeks to accomplish a substantive change via comment what was not accomplished in the group. In part, this may be because it is not a new voice or viewpoint for the Subgroup. (Of course I understand that the participants here were individuals while the comments came from entities, but that is typical -- most participants do not file individual comments.) In any event, if the process was not the problem, what was the problem, aside from disappointment in the result -- that what was a minority position remained a minority position? I note that the dissent, although advertised as concentrating on substance, actually contains little substance, aside from the statement that "the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard." What's missing is a statement identifying the portion of the Subgroup report where the submitters did not join the consensus. (I am assuming that they are not dissenting from the whole of the document.) What's also missing is the actual "minority position" -- the text that the dissent would have supported if it had been in the Report. Without these elements, the dissent regrettably reads more like a complaint than a minority report. Finally, I would note that the formal predicate for including a minority report is that it comes from the Subgroup participants who did not join the group's consensus. As such, it seems out of order to include any submitters other than participants. I suppose we are being a little more relaxed, since this is merely CCWG business. However, if the dissent insists on including a minority report in the full CCWG report put out for public comments, I hope that the process will be honored. Best regards, Greg On Tue, Sep 26, 2017 at 9:31 PM, McAuley, David via Ws2-hr <ws2-hr@icann.org<mailto:ws2-hr@icann.org>> wrote: Dear co-chairs and all, I plan to participate in the CCWG Plenary tomorrow, but it will be from a public setting where I will most likely be unable to comment other than by chat. Thus, I wish to respond to Jorge’s email here (noting as well that I participated in the drafting team that is at the center of some of the concern that has lately arisen). First, let me say that it has been a pleasure to be a part of the Subgroup on HR. The subgroup was very well led, and participants included serious, principled, and thoughtful individuals on all sides of the issues discussed. With respect to the draft ‘dissenting opinion,’ it is, in my opinion, difficult not to embrace the public comments of the governments of Brazil, Switzerland, and the United Kingdom when it comes to HR. Nonetheless, that is where I find myself on the narrow issue of making stronger reference to the Ruggie Principles (UN Guiding Principles on Business and Human Rights – UNGP) in the HR FOI and Considerations document. The subgroup draft appears to me to be properly balanced by stating that certain aspects of the UNGP could be considered as a useful guide in the process of applying the Human Rights Core Value. Under the UNGP, the responsibility to respect human rights requires that businesses, among other things, seek to mitigate adverse human rights impacts that are directly linked to their operations or services by their “business relationships,” even if they have not contributed to those impacts. This is one particular area of my concern when it comes to ICANN, which as a ‘business’ is unique. “Business relationships” is a very broad term in the UNGP - including relationships with business partners, entities in its value chain, and any others directly linked to its business operations, products or services. That must include registrants, among others. And while the UNGP try to accommodate various complexities, they still provide that If the business enterprise has leverage to prevent or mitigate the adverse impact, it should exercise it. It seems to me this aspect of the UNGP could inappropriately force ICANN into content issues outside its narrow mission. The new Core Value is a part of ICANN’s bylaws and as such is subject to IRP claims where potential claimants allege that ICANN violated the Core Value by its action or inaction. HR-based claims will almost inevitably wind up in front of the soon-to-be-constituted IRP panel. These (at least) seven new panelists will be drawn from legal circles independent of ICANN. There is simply no way to envision how they would interpret reference to the UNGP and no guarantee that this new precedent-setting body might not try to stretch ICANN’s mission to accommodate the UNGP. They will receive training on the DNS but we have no idea whether or to what extent they might appreciate ICANN’s unique mission, especially at the outset of their work where they will nevertheless have the power to set precedent. In its eloquent public comment, the government of the UK remarked that absent a stronger reference to UNGP the ICANN community would effectively miss an opportunity “to be a global transnational beacon for advancing corporate respect for human rights.” I respectfully disagree, thinking that ICANN has embraced that opportunity by explicitly adopting a core value aimed at respecting HR. Given ICANN’s unique mission (and potential damage from mission-creep), its open and participatory community, and the newness of the IRP panel to come, there appears to be no demonstrable need to make reference to the UNGP at present, but downside-risk does seem possible. If the community in the future discerns that such a need has subsequently arisen, then steps can be taken at that time to consider such a reference as appropriately tailored to take account of ICANN’s uniqueness. By that time, presumably, the IRP panel will have taken shape and have become a little more predictable than it is at the moment. Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154<tel:(703)%20948-4154> 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 Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Monday, September 18, 2017 5:46 AM To: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: [EXTERNAL] [Ws2-hr] WG: dissenting opinion - final-final text for CCWG For your information Kind regards Jorge Von: Cancio Jorge BAKOM Gesendet: Montag, 18. September 2017 11:45 An: 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>; 'Jordan Carter' <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: 'Niels ten Oever' <lists@nielstenoever.net<mailto:lists@nielstenoever.net>>; 'Bernard Turcotte' <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>; 'Arasteh' <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>; 'Mark Carvell' <mark.carvell@culture.gov.uk<mailto:mark.carvell@culture.gov.uk>>; 'María Milagros Castañon Seoane' <mcastanon@rree.gob.pe<mailto:mcastanon@rree.gob.pe>>; 'Thiago Braz Jardim Oliveira' <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> Betreff: AW: dissenting opinion - final-final text for CCWG Dear co-chairs and all, I note with appreciation the constructive and forward-looking Email Thomas Rickert sent on your behalf last week on the constitution of “drafting teams”. In order to allow for an as constructive as possible discussion on the CCWG Plenary on September 27, I would like to file with you the following amended version of our dissent, which tries to focus only on the substantive issues that hopefully may be bridged during our discussions in the CCWG Plenary: "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” Hope this may be helpful. Kind regards Jorge Von: Cancio Jorge BAKOM Gesendet: Mittwoch, 13. September 2017 08:35 An: León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Niels ten Oever <lists@nielstenoever.net<mailto:lists@nielstenoever.net>>; Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>; Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>; Mark Carvell <mark.carvell@culture.gov.uk<mailto:mark.carvell@culture.gov.uk>>; María Milagros Castañon Seoane <mcastanon@rree.gob.pe<mailto:mcastanon@rree.gob.pe>>; Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> Betreff: AW: dissenting opinion - final-final text for CCWG Dear Co-Chairs and all, For your convenience, here is the clean text version of the dissent we would like to be submitted to the Plenary for its consideration: "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitution, which contributed to having no Government representation on this team. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” Thanks again and regards Jorge Von: Cancio Jorge BAKOM Gesendet: Mittwoch, 13. September 2017 07:03 An: León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>; Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Niels ten Oever <lists@nielstenoever.net<mailto:lists@nielstenoever.net>>; Bernard Turcotte <turcotte.bernard@gmail.com<mailto:turcotte.bernard@gmail.com>>; Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>; Mark Carvell <mark.carvell@culture.gov.uk<mailto:mark.carvell@culture.gov.uk>>; María Milagros Castañon Seoane <mcastanon@rree.gob.pe<mailto:mcastanon@rree.gob.pe>>; Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>> Betreff: dissenting opinion - final-final text for CCWG Dear Co-Chairs please find below for your convenience and in order to avoid any misunderstandings on the final text, the final version of the dissenting opinion we have filed for Plenary. Kind regards Jorge ________________________________ Von: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Datum: 5. September 2017 um 12:33:00 MESZ An: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br> <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>, ws2-hr@icann.org<mailto:ws2-hr@icann.org> <ws2-hr@icann.org<mailto:ws2-hr@icann.org>>, lists@nielstenoever.net<mailto:lists@nielstenoever.net> <lists@nielstenoever.net<mailto:lists@nielstenoever.net>> Betreff: AW: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary Thanks to Greg for this thorough investigation to the origins of the „drafting team“. Apparently only the transcript of the call on August 8th provides some clarity on how the drafting team was constituted, as the agenda, the notes of the call, and the subsequent emails did not contain an open call for participating in such a drafting team. Nonetheless, and recognizing that at least in the call itself there was such a call for forming the drafting team, I would like to slightly amend the dissenting opinion as follows: == "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitutionopen invitation to participate in the drafting team, which contributed to having no Government representation on this team. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” == Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 5. September 2017 08:21 An: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; lists@nielstenoever.net<mailto:lists@nielstenoever.net>; thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary All, I think it would be helpful to review the course of events under discussion here and in the minority statement. I've taken the time to comb through the email list and the relevant meeting transcripts, and as far as I can determine, this is what took place. I'll provide this without further comment, but I hope it is useful to all members of the Subgroup. 1. Niels made a request for volunteers to join a drafting team on the August 8, 2017 Working Group call. Attendance records show that Kavouss Arasteh and Mark Carvell were on the call (the latter as an Observer). Three people on the call (David Macauley, myself and Tatiana Tropina) volunteered for the drafting team. Anne also apparently volunteered, but this was not noted in the call notes; this was subsequently clarified. 2. Almost directly after the call (or possibly even during the end of the call), Niels sent to the subgroup list an email with two versions of the paragraph in question ("Original text" and "Text proposed by me on the call"), and said "I am greatly looking forward to the suggestion of the drafting team." 3. Matthew Shears replied to that thread a couple of hours later and volunteered to be on the drafting team. Rudy Daniel, Anne Aikman-Scalese and Kavouss Arasteh also replied to that thread, with contributions. Rudy also sent a follow-on email with further observations; David responded to this. 4. Within a few hours after that, MSSI Secretariat sent an email to both the CCWG and ws2-hr lists with Action Items and raw captioning from the August 8 meeting. The second Action Item from the meeting was: * DM, GS, TT volunteer for drafting team for the two elements of text which were discussed on the call this week for consideration at the next meeting. 5. The next day, David sent another email on the topic, again to the full subgroup list. Kavouss, Anne and Steve DelBianco all replied to this email, discussing various aspects and options for the text. 6. Meanwhile, Anne sent an email directly after the call with some thoughts on the language of this paragraph, to which there were numerous responses by eight different members of the subgroup (Kavouss, Tijani, Steve, Rudy, Brett, Bastiaan, Seun and David) over the next couple of days. 7. Members of the drafting team took note of these discussions on the list and then put together a suggested revised text to be discussed by the Subgroup. 8. On August 15, the date set to return a text to the list, David Macauley on behalf of the Drafting Team sent a suggested text to the full list for the Subgroup to consider. Brett and Anne (who had not yet seen the very final suggested text due to time zone differences) responded in support of the suggested text. Jorge and Kavouss responded, objecting to the suggested text. 9. There were also responses to Niels' agenda email to the list, commenting on the suggested text -- Brett, Matthew, Rudy, and Anne in support; Jorge and Kavouss objecting. 10. This suggested text was then discussed on the August 15 call. The decision on that call, as reported in the post-call email from MSSI Secretariat, was: * The modifications proposed by the drafting team were not supported and as such are rejected. The original text used in the public consultation will be used. ​Only David Macauley and Tatiana Tropina were present from the drafting team. Anne, Matthew and I were unable to attend. Kavouss was on the call and participated actively in the discussion of the revised text. Mark Carvell was present as an Observer. ​11. ​At the following meeting on August 22, there was no further discussion of the drafting team's text. There was a second reading of the cover email to be sent to the Plenary with the Subgroup's report, including the language used to characterize the Subgroup's response to comments suggesting that the UNGP be expressly mentioned. There was also a lengthy discussion of procedural matters relating to the minority statement submitted by Jorge. Best regards, Greg On Thu, Aug 31, 2017 at 1:24 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thanks Jorge. You may recall that in one version of the revised “Considerations” language proposed by me on the list, I included a specific reference to ICANN the organisation using the assessment tool specified in Ruggie Principle 18(b). This suggestion was rejected by the rest of the drafting team. As far as I know, there were not separate drafting team calls and everyone participated on the list and proposed language on the general list. I am not certain how the final language arose, but in the end I elected to support it. I do think that if either Kavouss or you as active members would have chosen to become drafting team members, the language might have been better. 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> _____________________________ <image001.png> 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 Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, August 31, 2017 9:04 AM To: lists@nielstenoever.net<mailto:lists@nielstenoever.net> Cc: thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>;ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary Dear Niels, As anticipated, please find hereunder the final version of the dissenting opinion I would like to file to the report from the Subgroup: == "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as there was no open invitation to participate in the drafting team, which contributed to having no Government representation on this team. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” == Thanks for including it in the final report to be transmitted to the CCWG Plenary for its consideration. 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 MSSI Secretariat Gesendet: Mittwoch, 30. August 2017 00:54 An: CCWG Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [CCWG-ACCT] Recordings, DAIRs, Raw Caption Notes for Human Rights Subgroup Meeting #32 | 29 August 2017 Hello all, You may find the recordings,Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2Human Rights Subgroup - Meeting #32 – 29 August 2017 posted at https://community.icann.org/x/LwIhB The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call). A copy of the DAIRs and raw caption notes may be found below. Thank you. Kind Regards, Yvette Guigneaux (MSSI) Multistakeholder Strategy & Strategic Initiatives Projects & Operations Assistant. ICANN – Internet Corporation for Assigned Names and Numbers Email: yvette.guigneaux@icann.org<mailto:yvette.guigneaux@icann.org> Cell: +1-310-460-8432<tel:(310)%20460-8432> Skype: yvette.guigneaux.icann www.icann.org<http://www.icann.org/> <image002.png> Raw Captioning Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. • Word Doc<https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%...> • PDF<https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%...> Decisions: Decision taken to proceed with submitting the revised report for CCWG-Plenary’s consideration. Action Items: NTO to submit the revised report for CCWG-Plenary’s consideration. Requests: Members of the subgroup are seeking clarification on who has rights to file a Minority Statement, per the CCWG charter, and what has been done in the past: • Has an Observer filed a Minority Statement in CCWG Accountability before? • Has anyone who wasn't an official Member (appointed from an SOAC) filed a Minority Statement in CCWG before? • What the CCWG Charter say about who has rights to file a Minority Statement? Documents -Revisions to HR Subgroup email to CCWG Plenary<https://community.icann.org/download/attachments/69272111/Revisions%20to%20H...> ________________________________ 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. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ 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. 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Dear Thomas With respect, I must disagree. As I have said earlier it is completely within Jorge’s right to file a dissent that suggests that the process by which the report was adopted was, in his view, flawed. BUT, if Jorge is to file such a dissent then it must also be within the right of the majority to assert the contrary proposition – that is that in their view the process was complete and fair. I, for one, would support inclusion of a sentence or two to that effect in the majority report. Just as I did no think one can, or should, edit Jorge’s dissent for him, I don’t think we should edit the majority’s response. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Thomas Rickert Sent: Wednesday, September 27, 2017 1:57 AM To: Greg Shatan <gregshatanipc@gmail.com> Cc: Thomas Rickert <thomas@rickert.net>; ws2-hr@icann.org Subject: Re: [Ws2-hr] dissenting opinion - final-final text for CCWG Hi Greg, all, Thanks for your message. With respect to the minority report. We have discussed the issue, both substance as well as procedure at length. Subsequently, the process point has kindly been edited by Jorge. I suggest we let that point rest now. Best, Thomas Am 27.09.2017 um 05:07 schrieb Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >: All, With regard to the statement "However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments," I am still at a loss to understand what was not "inclusive" about the efforts of the Subgroup and in particular our Rapporteur, Niels ten Oever. Since the reference to the last drafting team was removed, I assume it was not the drafting team. Since the drafting team did most of its work on the main Subgroup list, was open to everybody (minor procedural flaws in the call for volunteers aside), and the drafting team's suggested changes were not even adopted, that seems like the right result. In any event there were ample opportunities to contribute suggested alternatives to the list -- the drafting team did not have a monopoly. If the drafting team isn't the issue, then what was the issue? The floor and the email list were open at all times to all participants in the Subgroup. No one in the Subgroup was excluded. The public comments were read, fully considered and extensively discussed. There is no presumption that any particular public comment or comments will result in a change to a draft Report. As such, while "Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses," there was no basis for that expectation. The consideration of public comments is too nuanced to reduce to simple rules, but I have observed that public comments that do result in changes tend to fall into the following categories: (1) suggestions that do not change the substance, but improve the expression, (2) comments that bring new facts to light, so that the basis of the recommendation is no longer accurate, or (3) multiple diverse comments that persuasively show the group that they got it wrong the first time and that they have missed the sense of the multistakeholder community. The comments in question, eloquent and well stated though they may have been, did none of the above. One category of public comment that has not been particularly effective, in my experience, is a comment from a group participant (or related participants) that seeks to accomplish a substantive change via comment what was not accomplished in the group. In part, this may be because it is not a new voice or viewpoint for the Subgroup. (Of course I understand that the participants here were individuals while the comments came from entities, but that is typical -- most participants do not file individual comments.) In any event, if the process was not the problem, what was the problem, aside from disappointment in the result -- that what was a minority position remained a minority position? I note that the dissent, although advertised as concentrating on substance, actually contains little substance, aside from the statement that "the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard." What's missing is a statement identifying the portion of the Subgroup report where the submitters did not join the consensus. (I am assuming that they are not dissenting from the whole of the document.) What's also missing is the actual "minority position" -- the text that the dissent would have supported if it had been in the Report. Without these elements, the dissent regrettably reads more like a complaint than a minority report. Finally, I would note that the formal predicate for including a minority report is that it comes from the Subgroup participants who did not join the group's consensus. As such, it seems out of order to include any submitters other than participants. I suppose we are being a little more relaxed, since this is merely CCWG business. However, if the dissent insists on including a minority report in the full CCWG report put out for public comments, I hope that the process will be honored. Best regards, Greg On Tue, Sep 26, 2017 at 9:31 PM, McAuley, David via Ws2-hr <ws2-hr@icann.org <mailto:ws2-hr@icann.org> > wrote: Dear co-chairs and all, I plan to participate in the CCWG Plenary tomorrow, but it will be from a public setting where I will most likely be unable to comment other than by chat. Thus, I wish to respond to Jorge’s email here (noting as well that I participated in the drafting team that is at the center of some of the concern that has lately arisen). First, let me say that it has been a pleasure to be a part of the Subgroup on HR. The subgroup was very well led, and participants included serious, principled, and thoughtful individuals on all sides of the issues discussed. With respect to the draft ‘dissenting opinion,’ it is, in my opinion, difficult not to embrace the public comments of the governments of Brazil, Switzerland, and the United Kingdom when it comes to HR. Nonetheless, that is where I find myself on the narrow issue of making stronger reference to the Ruggie Principles (UN Guiding Principles on Business and Human Rights – UNGP) in the HR FOI and Considerations document. The subgroup draft appears to me to be properly balanced by stating that certain aspects of the UNGP could be considered as a useful guide in the process of applying the Human Rights Core Value. Under the UNGP, the responsibility to respect human rights requires that businesses, among other things, seek to mitigate adverse human rights impacts that are directly linked to their operations or services by their “business relationships,” even if they have not contributed to those impacts. This is one particular area of my concern when it comes to ICANN, which as a ‘business’ is unique. “Business relationships” is a very broad term in the UNGP - including relationships with business partners, entities in its value chain, and any others directly linked to its business operations, products or services. That must include registrants, among others. And while the UNGP try to accommodate various complexities, they still provide that If the business enterprise has leverage to prevent or mitigate the adverse impact, it should exercise it. It seems to me this aspect of the UNGP could inappropriately force ICANN into content issues outside its narrow mission. The new Core Value is a part of ICANN’s bylaws and as such is subject to IRP claims where potential claimants allege that ICANN violated the Core Value by its action or inaction. HR-based claims will almost inevitably wind up in front of the soon-to-be-constituted IRP panel. These (at least) seven new panelists will be drawn from legal circles independent of ICANN. There is simply no way to envision how they would interpret reference to the UNGP and no guarantee that this new precedent-setting body might not try to stretch ICANN’s mission to accommodate the UNGP. They will receive training on the DNS but we have no idea whether or to what extent they might appreciate ICANN’s unique mission, especially at the outset of their work where they will nevertheless have the power to set precedent. In its eloquent public comment, the government of the UK remarked that absent a stronger reference to UNGP the ICANN community would effectively miss an opportunity “to be a global transnational beacon for advancing corporate respect for human rights.” I respectfully disagree, thinking that ICANN has embraced that opportunity by explicitly adopting a core value aimed at respecting HR. Given ICANN’s unique mission (and potential damage from mission-creep), its open and participatory community, and the newness of the IRP panel to come, there appears to be no demonstrable need to make reference to the UNGP at present, but downside-risk does seem possible. If the community in the future discerns that such a need has subsequently arisen, then steps can be taken at that time to consider such a reference as appropriately tailored to take account of ICANN’s uniqueness. By that time, presumably, the IRP panel will have taken shape and have become a little more predictable than it is at the moment. Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 <tel:(703)%20948-4154> 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 Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Sent: Monday, September 18, 2017 5:46 AM To: ws2-hr@icann.org <mailto:ws2-hr@icann.org> Subject: [EXTERNAL] [Ws2-hr] WG: dissenting opinion - final-final text for CCWG For your information Kind regards Jorge Von: Cancio Jorge BAKOM Gesendet: Montag, 18. September 2017 11:45 An: 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> >; 'Thomas Rickert' <thomas@rickert.net <mailto:thomas@rickert.net> >; 'Jordan Carter' <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > Cc: 'Niels ten Oever' <lists@nielstenoever.net <mailto:lists@nielstenoever.net> >; 'Bernard Turcotte' <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com> >; 'Arasteh' <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> >; 'Mark Carvell' <mark.carvell@culture.gov.uk <mailto:mark.carvell@culture.gov.uk> >; 'María Milagros Castañon Seoane' <mcastanon@rree.gob.pe <mailto:mcastanon@rree.gob.pe> >; 'Thiago Braz Jardim Oliveira' <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> > Betreff: AW: dissenting opinion - final-final text for CCWG Dear co-chairs and all, I note with appreciation the constructive and forward-looking Email Thomas Rickert sent on your behalf last week on the constitution of “drafting teams”. In order to allow for an as constructive as possible discussion on the CCWG Plenary on September 27, I would like to file with you the following amended version of our dissent, which tries to focus only on the substantive issues that hopefully may be bridged during our discussions in the CCWG Plenary: "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” Hope this may be helpful. Kind regards Jorge Von: Cancio Jorge BAKOM Gesendet: Mittwoch, 13. September 2017 08:35 An: León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> >; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net> >; Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > Cc: Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net> >; Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com> >; Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> >; Mark Carvell <mark.carvell@culture.gov.uk <mailto:mark.carvell@culture.gov.uk> >; María Milagros Castañon Seoane <mcastanon@rree.gob.pe <mailto:mcastanon@rree.gob.pe> >; Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> > Betreff: AW: dissenting opinion - final-final text for CCWG Dear Co-Chairs and all, For your convenience, here is the clean text version of the dissent we would like to be submitted to the Plenary for its consideration: "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitution, which contributed to having no Government representation on this team. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” Thanks again and regards Jorge Von: Cancio Jorge BAKOM Gesendet: Mittwoch, 13. September 2017 07:03 An: León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx> >; Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net> >; Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > Cc: Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net> >; Bernard Turcotte <turcotte.bernard@gmail.com <mailto:turcotte.bernard@gmail.com> >; Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> >; Mark Carvell <mark.carvell@culture.gov.uk <mailto:mark.carvell@culture.gov.uk> >; María Milagros Castañon Seoane <mcastanon@rree.gob.pe <mailto:mcastanon@rree.gob.pe> >; Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> > Betreff: dissenting opinion - final-final text for CCWG Dear Co-Chairs please find below for your convenience and in order to avoid any misunderstandings on the final text, the final version of the dissenting opinion we have filed for Plenary. Kind regards Jorge _____ Von: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> > Datum: 5. September 2017 um 12:33:00 MESZ An: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > Cc: thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >, ws2-hr@icann.org <mailto:ws2-hr@icann.org> <ws2-hr@icann.org <mailto:ws2-hr@icann.org> >, lists@nielstenoever.net <mailto:lists@nielstenoever.net> <lists@nielstenoever.net <mailto:lists@nielstenoever.net> > Betreff: AW: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary Thanks to Greg for this thorough investigation to the origins of the „drafting team“. Apparently only the transcript of the call on August 8th provides some clarity on how the drafting team was constituted, as the agenda, the notes of the call, and the subsequent emails did not contain an open call for participating in such a drafting team. Nonetheless, and recognizing that at least in the call itself there was such a call for forming the drafting team, I would like to slightly amend the dissenting opinion as follows: == "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitutionopen invitation to participate in the drafting team, which contributed to having no Government representation on this team. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” == Kind regards Jorge Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 5. September 2017 08:21 An: Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > Cc: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> >; lists@nielstenoever.net <mailto:lists@nielstenoever.net> ; thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> ; ws2-hr@icann.org <mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary All, I think it would be helpful to review the course of events under discussion here and in the minority statement. I've taken the time to comb through the email list and the relevant meeting transcripts, and as far as I can determine, this is what took place. I'll provide this without further comment, but I hope it is useful to all members of the Subgroup. 1. Niels made a request for volunteers to join a drafting team on the August 8, 2017 Working Group call. Attendance records show that Kavouss Arasteh and Mark Carvell were on the call (the latter as an Observer). Three people on the call (David Macauley, myself and Tatiana Tropina) volunteered for the drafting team. Anne also apparently volunteered, but this was not noted in the call notes; this was subsequently clarified. 2. Almost directly after the call (or possibly even during the end of the call), Niels sent to the subgroup list an email with two versions of the paragraph in question ("Original text" and "Text proposed by me on the call"), and said "I am greatly looking forward to the suggestion of the drafting team." 3. Matthew Shears replied to that thread a couple of hours later and volunteered to be on the drafting team. Rudy Daniel, Anne Aikman-Scalese and Kavouss Arasteh also replied to that thread, with contributions. Rudy also sent a follow-on email with further observations; David responded to this. 4. Within a few hours after that, MSSI Secretariat sent an email to both the CCWG and ws2-hr lists with Action Items and raw captioning from the August 8 meeting. The second Action Item from the meeting was: * DM, GS, TT volunteer for drafting team for the two elements of text which were discussed on the call this week for consideration at the next meeting. 5. The next day, David sent another email on the topic, again to the full subgroup list. Kavouss, Anne and Steve DelBianco all replied to this email, discussing various aspects and options for the text. 6. Meanwhile, Anne sent an email directly after the call with some thoughts on the language of this paragraph, to which there were numerous responses by eight different members of the subgroup (Kavouss, Tijani, Steve, Rudy, Brett, Bastiaan, Seun and David) over the next couple of days. 7. Members of the drafting team took note of these discussions on the list and then put together a suggested revised text to be discussed by the Subgroup. 8. On August 15, the date set to return a text to the list, David Macauley on behalf of the Drafting Team sent a suggested text to the full list for the Subgroup to consider. Brett and Anne (who had not yet seen the very final suggested text due to time zone differences) responded in support of the suggested text. Jorge and Kavouss responded, objecting to the suggested text. 9. There were also responses to Niels' agenda email to the list, commenting on the suggested text -- Brett, Matthew, Rudy, and Anne in support; Jorge and Kavouss objecting. 10. This suggested text was then discussed on the August 15 call. The decision on that call, as reported in the post-call email from MSSI Secretariat, was: * The modifications proposed by the drafting team were not supported and as such are rejected. The original text used in the public consultation will be used. ​Only David Macauley and Tatiana Tropina were present from the drafting team. Anne, Matthew and I were unable to attend. Kavouss was on the call and participated actively in the discussion of the revised text. Mark Carvell was present as an Observer. ​11. ​At the following meeting on August 22, there was no further discussion of the drafting team's text. There was a second reading of the cover email to be sent to the Plenary with the Subgroup's report, including the language used to characterize the Subgroup's response to comments suggesting that the UNGP be expressly mentioned. There was also a lengthy discussion of procedural matters relating to the minority statement submitted by Jorge. Best regards, Greg On Thu, Aug 31, 2017 at 1:24 PM, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote: Thanks Jorge. You may recall that in one version of the revised “Considerations” language proposed by me on the list, I included a specific reference to ICANN the organisation using the assessment tool specified in Ruggie Principle 18(b). This suggestion was rejected by the rest of the drafting team. As far as I know, there were not separate drafting team calls and everyone participated on the list and proposed language on the general list. I am not certain how the final language arose, but in the end I elected to support it. I do think that if either Kavouss or you as active members would have chosen to become drafting team members, the language might have been better. 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 <mailto:AAikman@lrrc.com> AAikman@lrrc.com _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 <http://lrrc.com/> 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 Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch> Sent: Thursday, August 31, 2017 9:04 AM To: lists@nielstenoever.net <mailto:lists@nielstenoever.net> Cc: thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> ;ws2-hr@icann.org <mailto:ws2-hr@icann.org> Subject: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary Dear Niels, As anticipated, please find hereunder the final version of the dissenting opinion I would like to file to the report from the Subgroup: == "This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group). Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised. In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments. Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as there was no open invitation to participate in the drafting team, which contributed to having no Government representation on this team. This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.” == Thanks for including it in the final report to be transmitted to the CCWG Plenary for its consideration. 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 MSSI Secretariat Gesendet: Mittwoch, 30. August 2017 00:54 An: CCWG Accountability <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Cc: ws2-hr@icann.org <mailto:ws2-hr@icann.org> Betreff: [CCWG-ACCT] Recordings, DAIRs, Raw Caption Notes for Human Rights Subgroup Meeting #32 | 29 August 2017 Hello all, You may find the recordings,Decisions, Action Items, Requests (DAIRs), and raw caption notes for CCWG Accountability WS2Human Rights Subgroup - Meeting #32 – 29 August 2017 posted at https://community.icann.org/x/LwIhB The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call). A copy of the DAIRs and raw caption notes may be found below. Thank you. Kind Regards, Yvette Guigneaux (MSSI) Multistakeholder Strategy & Strategic Initiatives Projects & Operations Assistant. ICANN – Internet Corporation for Assigned Names and Numbers Email: yvette.guigneaux@icann.org <mailto:yvette.guigneaux@icann.org> Cell: +1-310-460-8432 <tel:(310)%20460-8432> Skype: yvette.guigneaux.icann www.icann.org <http://www.icann.org/> <image002.png> Raw Captioning Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. * Word Doc <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%...> * <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%...> PDF Decisions: Decision taken to proceed with submitting the revised report for CCWG-Plenary’s consideration. Action Items: NTO to submit the revised report for CCWG-Plenary’s consideration. Requests: Members of the subgroup are seeking clarification on who has rights to file a Minority Statement, per the CCWG charter, and what has been done in the past: * Has an Observer filed a Minority Statement in CCWG Accountability before? * Has anyone who wasn't an official Member (appointed from an SOAC) filed a Minority Statement in CCWG before? * What the CCWG Charter say about who has rights to file a Minority Statement? Documents - <https://community.icann.org/download/attachments/69272111/Revisions%20to%20H...> Revisions to HR Subgroup email to CCWG Plenary _____ 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. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

Thomas, All, Thank you for your email. To be clear, I am pleased that Jorge removed the text referring specifically to the "drafting team," as a result of our discussions regarding the drafting team and your reminder that calls for drafting team volunteers should be clearly stated on the list as well as in the Subgroup calls. But I do not recall any discussions of process, other than relating to the drafting team. This leaves a vague and unsupported statement that "the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments," Although this is a "minority report," this could still leave the impression that this is what happened in the Subgroup. I recognize that, as a minority report, this document (including the quoted statement) is, by definition, not supported by the remainder of the Subgroup. However, the quoted statement does not dissent from any specific text in the Subgroup Report. Thus, it is unrefuted (and, hence, the concern that it leaves the impression that the statement accurately recounts what happened in the Subgroup). To avoid confusion, we should put into the Subgroup report a statement such as "*The Subgroup undertook inclusive efforts to determine if a compromise text could be formulated that would accommodate this position of the three governments. However, there was not sufficient support in the Subgroup for any change in the existing text.*" If desired, we could insert "substantial, comprehensive and" before "inclusive" in the above text. This would provide an actual statement in the Report from which the dissenting opinion dissents. This would also make it clear that there is a prevailing view in the Subgroup that the process was appropriate. I think this would greatly aid understanding of the Report package as a whole, avoiding misinterpretation and avoiding any inadvertent erosion in the CCWG's (or the public's) confidence in the Report. Best regards, Greg On Wed, Sep 27, 2017 at 8:54 AM, Matthew Shears <matthew@intpolicy.com> wrote:

I would like to express my full support for the views of both David and Greg.

Matthew

On 27/09/2017 00:07, Greg Shatan wrote:

All,

With regard to the statement "However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments," I am still at a loss to understand what was not "inclusive" about the efforts of the Subgroup and in particular our Rapporteur, Niels ten Oever.

Since the reference to the last drafting team was removed, I assume it was not the drafting team. Since the drafting team did most of its work on the main Subgroup list, was open to everybody (minor procedural flaws in the call for volunteers aside), and the drafting team's suggested changes were not even adopted, that seems like the right result.

In any event there were ample opportunities to contribute suggested alternatives to the list -- the drafting team did not have a monopoly.

If the drafting team isn't the issue, then what was the issue? The floor and the email list were open at all times to all participants in the Subgroup. No one in the Subgroup was excluded.

The public comments were read, fully considered and extensively discussed. There is no presumption that any particular public comment or comments will result in a change to a draft Report. As such, while "Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses," there was no basis for that expectation.

The consideration of public comments is too nuanced to reduce to simple rules, but I have observed that public comments that do result in changes tend to fall into the following categories: (1) suggestions that do not change the substance, but improve the expression, (2) comments that bring new facts to light, so that the basis of the recommendation is no longer accurate, or (3) multiple diverse comments that persuasively show the group that they got it wrong the first time and that they have missed the sense of the multistakeholder community. The comments in question, eloquent and well stated though they may have been, did none of the above.

One category of public comment that has not been particularly effective, in my experience, is a comment from a group participant (or related participants) that seeks to accomplish a substantive change via comment what was not accomplished in the group. In part, this may be because it is not a new voice or viewpoint for the Subgroup. (Of course I understand that the participants here were individuals while the comments came from entities, but that is typical -- most participants do not file individual comments.)

In any event, if the process was not the problem, what was the problem, aside from disappointment in the result -- that what was a minority position remained a minority position?

I note that the dissent, although advertised as concentrating on substance, actually contains little substance, aside from the statement that "the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard."

What's missing is a statement identifying the portion of the Subgroup report where the submitters did not join the consensus. (I am assuming that they are not dissenting from the whole of the document.) What's also missing is the actual "minority position" -- the text that the dissent would have supported if it had been in the Report. Without these elements, the dissent regrettably reads more like a complaint than a minority report.

Finally, I would note that the formal predicate for including a minority report is that it comes from the Subgroup participants who did not join the group's consensus. As such, it seems out of order to include any submitters other than participants. I suppose we are being a little more relaxed, since this is merely CCWG business. However, if the dissent insists on including a minority report in the full CCWG report put out for public comments, I hope that the process will be honored.

Best regards,

Greg

On Tue, Sep 26, 2017 at 9:31 PM, McAuley, David via Ws2-hr < ws2-hr@icann.org> wrote:

...

Dear co-chairs and all,

I plan to participate in the CCWG Plenary tomorrow, but it will be from a public setting where I will most likely be unable to comment other than by chat.

Thus, I wish to respond to Jorge’s email here (noting as well that I participated in the drafting team that is at the center of some of the concern that has lately arisen).

First, let me say that it has been a pleasure to be a part of the Subgroup on HR. The subgroup was very well led, and participants included serious, principled, and thoughtful individuals on all sides of the issues discussed.

With respect to the draft ‘dissenting opinion,’ it is, in my opinion, difficult not to embrace the public comments of the governments of Brazil, Switzerland, and the United Kingdom when it comes to HR.

Nonetheless, that is where I find myself on the narrow issue of making stronger reference to the Ruggie Principles (UN Guiding Principles on Business and Human Rights – UNGP) in the HR FOI and Considerations document.

The subgroup draft appears to me to be properly balanced by stating that certain aspects of the UNGP could be considered as a useful guide in the process of applying the Human Rights Core Value.

Under the UNGP, the responsibility to respect human rights requires that businesses, among other things, seek to mitigate adverse human rights impacts that are directly linked to their operations or services by their “business relationships,” even if they have not contributed to those impacts. This is one particular area of my concern when it comes to ICANN, which as a ‘business’ is unique.

“Business relationships” is a very broad term in the UNGP - including relationships with business partners, entities in its value chain, and any others directly linked to its business operations, products or services. That must include registrants, among others.

And while the UNGP try to accommodate various complexities, they still provide that If the business enterprise has leverage to prevent or mitigate the adverse impact, it should exercise it.

It seems to me this aspect of the UNGP could inappropriately force ICANN into content issues outside its narrow mission.

The new Core Value is a part of ICANN’s bylaws and as such is subject to IRP claims where potential claimants allege that ICANN violated the Core Value by its action or inaction. HR-based claims will almost inevitably wind up in front of the soon-to-be-constituted IRP panel. These (at least) seven new panelists will be drawn from legal circles independent of ICANN. There is simply no way to envision how they would interpret reference to the UNGP and no guarantee that this new precedent-setting body might not try to stretch ICANN’s mission to accommodate the UNGP. They will receive training on the DNS but we have no idea whether or to what extent they might appreciate ICANN’s unique mission, especially at the outset of their work where they will nevertheless have the power to set precedent.

In its eloquent public comment, the government of the UK remarked that absent a stronger reference to UNGP the ICANN community would effectively miss an opportunity “to be a global transnational beacon for advancing corporate respect for human rights.”

I respectfully disagree, thinking that ICANN has embraced that opportunity by explicitly adopting a core value aimed at respecting HR.

Given ICANN’s unique mission (and potential damage from mission-creep), its open and participatory community, and the newness of the IRP panel to come, there appears to be no demonstrable need to make reference to the UNGP at present, but downside-risk does seem possible. If the community in the future discerns that such a need has subsequently arisen, then steps can be taken at that time to consider such a reference as appropriately tailored to take account of ICANN’s uniqueness. By that time, presumably, the IRP panel will have taken shape and have become a little more predictable than it is at the moment.

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154 <%28703%29%20948-4154>

*From:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *On Behalf Of *Jorge.Cancio@bakom.admin.ch *Sent:* Monday, September 18, 2017 5:46 AM *To:* ws2-hr@icann.org *Subject:* [EXTERNAL] [Ws2-hr] WG: dissenting opinion - final-final text for CCWG

For your information

Kind regards

Jorge

*Von:* Cancio Jorge BAKOM *Gesendet:* Montag, 18. September 2017 11:45 *An:* 'León Felipe Sánchez Ambía' <leonfelipe@sanchez.mx>; 'Thomas Rickert' <thomas@rickert.net>; 'Jordan Carter' <jordan@internetnz.net.nz> *Cc:* 'Niels ten Oever' <lists@nielstenoever.net>; 'Bernard Turcotte' < turcotte.bernard@gmail.com>; 'Arasteh' <kavouss.arasteh@gmail.com>; 'Mark Carvell' <mark.carvell@culture.gov.uk>; 'María Milagros Castañon Seoane' <mcastanon@rree.gob.pe>; 'Thiago Braz Jardim Oliveira' < thiago.jardim@itamaraty.gov.br> *Betreff:* AW: dissenting opinion - final-final text for CCWG

Dear co-chairs and all,

I note with appreciation the constructive and forward-looking Email Thomas Rickert sent on your behalf last week on the constitution of “drafting teams”.

In order to allow for an as constructive as possible discussion on the CCWG Plenary on September 27, I would like to file with you the following *amended version of our dissent*, which tries to focus only on the substantive issues that hopefully may be bridged during our discussions in the CCWG Plenary:

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

Hope this may be helpful.

Kind regards

Jorge

*Von:* Cancio Jorge BAKOM *Gesendet:* Mittwoch, 13. September 2017 08:35 *An:* León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Thomas Rickert < thomas@rickert.net>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* Niels ten Oever <lists@nielstenoever.net>; Bernard Turcotte < turcotte.bernard@gmail.com>; Arasteh <kavouss.arasteh@gmail.com>; Mark Carvell <mark.carvell@culture.gov.uk>; María Milagros Castañon Seoane < mcastanon@rree.gob.pe>; Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> *Betreff:* AW: dissenting opinion - final-final text for CCWG

Dear Co-Chairs and all,

For your convenience, here is the clean text version of the dissent we would like to be submitted to the Plenary for its consideration:

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitution, which contributed to having no Government representation on this team.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

Thanks again and regards

Jorge

*Von:* Cancio Jorge BAKOM *Gesendet:* Mittwoch, 13. September 2017 07:03 *An:* León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>; Thomas Rickert < thomas@rickert.net>; Jordan Carter <jordan@internetnz.net.nz> *Cc:* Niels ten Oever <lists@nielstenoever.net>; Bernard Turcotte < turcotte.bernard@gmail.com>; Arasteh <kavouss.arasteh@gmail.com>; Mark Carvell <mark.carvell@culture.gov.uk>; María Milagros Castañon Seoane < mcastanon@rree.gob.pe>; Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br> *Betreff:* dissenting opinion - final-final text for CCWG

Dear Co-Chairs

please find below for your convenience and in order to avoid any misunderstandings on the final text, the final version of the dissenting opinion we have filed for Plenary.

Kind regards

Jorge

------------------------------

*Von:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> *Datum:* 5. September 2017 um 12:33:00 MESZ *An:* Greg Shatan <gregshatanipc@gmail.com>, Aikman-Scalese, Anne < AAikman@lrrc.com> *Cc:* thiago.jardim@itamaraty.gov.br <thiago.jardim@itamaraty.gov.br>, ws2-hr@icann.org <ws2-hr@icann.org>, lists@nielstenoever.net < lists@nielstenoever.net> *Betreff:* AW: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary

Thanks to Greg for this thorough investigation to the origins of the „drafting team“. Apparently only the transcript of the call on August 8th provides some clarity on how the drafting team was constituted, as the agenda, the notes of the call, and the subsequent emails did not contain an open call for participating in such a drafting team.

Nonetheless, and recognizing that at least in the call itself there was such a call for forming the drafting team, I would like to slightly amend the dissenting opinion as follows:

==

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as in our view there was not an appropriate communication and outreach on its constitutionopen invitation to participate in the drafting team, which contributed to having no Government representation on this team.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

==

Kind regards

Jorge

*Von:* Greg Shatan [mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>] *Gesendet:* Dienstag, 5. September 2017 08:21 *An:* Aikman-Scalese, Anne <AAikman@lrrc.com> *Cc:* Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; lists@nielstenoever.net; thiago.jardim@itamaraty.gov.br; ws2-hr@icann.org *Betreff:* Re: [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary

All,

I think it would be helpful to review the course of events under discussion here and in the minority statement. I've taken the time to comb through the email list and the relevant meeting transcripts, and as far as I can determine, this is what took place. I'll provide this without further comment, but I hope it is useful to all members of the Subgroup.

1. Niels made a request for volunteers to join a drafting team on the August 8, 2017 Working Group call. Attendance records show that Kavouss Arasteh and Mark Carvell were on the call (the latter as an Observer). Three people on the call (David Macauley, myself and Tatiana Tropina) volunteered for the drafting team. Anne also apparently volunteered, but this was not noted in the call notes; this was subsequently clarified.

2. Almost directly after the call (or possibly even during the end of the call), Niels sent to the subgroup list an email with two versions of the paragraph in question ("Original text" and "Text proposed by me on the call"), and said "I am greatly looking forward to the suggestion of the drafting team."

3. Matthew Shears replied to that thread a couple of hours later and volunteered to be on the drafting team. Rudy Daniel, Anne Aikman-Scalese and Kavouss Arasteh also replied to that thread, with contributions. Rudy also sent a follow-on email with further observations; David responded to this.

4. Within a few hours after that, MSSI Secretariat sent an email to both the CCWG and ws2-hr lists with Action Items and raw captioning from the August 8 meeting. The second Action Item from the meeting was:

- *DM, GS, TT volunteer for drafting team for the two elements of text which were discussed on the call this week for consideration at the next meeting.*

5. The next day, David sent another email on the topic, again to the full subgroup list. Kavouss, Anne and Steve DelBianco all replied to this email, discussing various aspects and options for the text.

6. Meanwhile, Anne sent an email directly after the call with some thoughts on the language of this paragraph, to which there were numerous responses by eight different members of the subgroup (Kavouss, Tijani, Steve, Rudy, Brett, Bastiaan, Seun and David) over the next couple of days.

7. Members of the drafting team took note of these discussions on the list and then put together a suggested revised text to be discussed by the Subgroup.

8. On August 15, the date set to return a text to the list, David Macauley on behalf of the Drafting Team sent a suggested text to the full list for the Subgroup to consider. Brett and Anne (who had not yet seen the very final suggested text due to time zone differences) responded in support of the suggested text. Jorge and Kavouss responded, objecting to the suggested text.

9. There were also responses to Niels' agenda email to the list, commenting on the suggested text -- Brett, Matthew, Rudy, and Anne in support; Jorge and Kavouss objecting.

10. This suggested text was then discussed on the August 15 call. The decision on that call, as reported in the post-call email from MSSI Secretariat, was:

- The modifications proposed by the drafting team were not supported and as such are rejected. The original text used in the public consultation will be used.

​Only David Macauley and Tatiana Tropina were present from the drafting team. Anne, Matthew and I were unable to attend. Kavouss was on the call and participated actively in the discussion of the revised text. Mark Carvell was present as an Observer.

​11. ​At the following meeting on August 22, there was no further discussion of the drafting team's text. There was a second reading of the cover email to be sent to the Plenary with the Subgroup's report, including the language used to characterize the Subgroup's response to comments suggesting that the UNGP be expressly mentioned. There was also a lengthy discussion of procedural matters relating to the minority statement submitted by Jorge.

Best regards,

Greg

On Thu, Aug 31, 2017 at 1:24 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:

Thanks Jorge. You may recall that in one version of the revised “Considerations” language proposed by me on the list, I included a specific reference to ICANN the organisation using the assessment tool specified in Ruggie Principle 18(b). This suggestion was rejected by the rest of the drafting team. As far as I know, there were not separate drafting team calls and everyone participated on the list and proposed language on the general list.

I am not certain how the final language arose, but in the end I elected to support it. I do think that if either Kavouss or you as active members would have chosen to become drafting team members, the language might have been better.

Thank you

Anne

*Anne E. Aikman-Scalese*

Of Counsel

520.629.4428 <%28520%29%20629-4428> office

520.879.4725 <%28520%29%20879-4725> fax

AAikman@lrrc.com

_____________________________

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com

*From:*ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org]*On Behalf Of *Jorge.Cancio@bakom.admin.ch *Sent:* Thursday, August 31, 2017 9:04 AM *To:* lists@nielstenoever.net *Cc:* thiago.jardim@itamaraty.gov.br;ws2-hr@icann.org *Subject:* [Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary

Dear Niels,

As anticipated, please find hereunder the final version of the dissenting opinion I would like to file to the report from the Subgroup:

==

"This dissenting opinion is based on serious concerns about the Sub-Group's treatment of the substantial comments and proposals submitted during the public comment period by the Governments of Brazil, Switzerland and the United Kingdom (who are all active members of the GAC's Human Rights and International Law Working Group).

Their expectation was that a properly balanced result would reflect some if not all of the positions and proposals made in their responses. The governments are dismayed to note, however, that there are no changes of any significance to the draft FoI and Considerations documents that addresses any of the substantial issueswhich they raised.

In particular, the three Governments were in full agreement that the FOI text should make stronger reference to the UN Guiding Principles as the most relevant voluntary international standard. However, the Subgroup did not undertake an inclusive effort to determine if a compromise text could be formulated that would accommodate this position of the three governments.

Furthermore, the drafting team which was created by the Sub-Group in order to develop changes to the draft texts following consideration of the inputs received, lacked appropriate stakeholder balance as there was no open invitation to participate in the drafting team, which contributed to having no Government representation on this team.

This dissenting opinion is supported by Jorge Cancio (Switzerland) and Kavouss Arasteh (Iran), members of this Subgroup, and the representatives of the Governments of Brazil and UK who are observers on this Subgroup, and the representative of the Government of Peru.”

==

Thanks for including it in the final report to be transmitted to the CCWG Plenary for its consideration.

Kind regards

Jorge

*Von:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>]*Im Auftrag von *MSSI Secretariat *Gesendet:* Mittwoch, 30. August 2017 00:54 *An:* CCWG Accountability <accountability-cross-community@icann.org> *Cc:* ws2-hr@icann.org *Betreff:* [CCWG-ACCT] Recordings, DAIRs, Raw Caption Notes for Human Rights Subgroup Meeting #32 | 29 August 2017

Hello all,

You may find the recordings,*D*ecisions, *A*ction *I*tems, *R*equests (DAIRs), and raw caption notes for CCWG Accountability WS2*Human Rights Subgroup - Meeting #32 *– *29 August 2017* posted at https://community.icann.org/x/LwIhB

The transcript will be posted on when it becomes available (usually in 3 to 5 business days after the call).

A copy of the DAIRs and raw caption notes may be found below.

Thank you.

Kind Regards,

*Yvette Guigneaux*

*(MSSI) Multistakeholder Strategy & Strategic Initiatives *

Projects & Operations Assistant.

*ICANN – Internet Corporation for Assigned Names and Numbers*

Email: yvette.guigneaux@icann.org

Cell: +1-310-460-8432 <%28310%29%20460-8432>

Skype: yvette.guigneaux.icann

www.icann.org

*Raw Captioning Notes*

*Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. *

· *Word Doc <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%20Human%20Rights_%20Meeting%2032_%2029AUG17.docx?version=1&modificationDate=1504045965699&api=v2>*

· *PDF <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%20Human%20Rights_%20Meeting%2032_%2029AUG17.pdf?version=1&modificationDate=1504045991224&api=v2>*

*Decisions: *Decision taken to proceed with submitting the revised report for CCWG-Plenary’s consideration.

*Action Items: *NTO to submit the revised report for CCWG-Plenary’s consideration.

*Requests: *Members of the subgroup are seeking clarification on who has rights to file a Minority Statement, per the CCWG charter, and what has been done in the past:

· Has an Observer filed a Minority Statement in CCWG Accountability before?

· Has anyone who wasn't an official Member (appointed from an SOAC) filed a Minority Statement in CCWG before?

· What the CCWG Charter say about who has rights to file a Minority Statement?

*Documents -Revisions to HR Subgroup email to CCWG Plenary <https://community.icann.org/download/attachments/69272111/Revisions%20to%20HR%20Subgroup%20email%20to%20CCWG%20Plenary%5B1%5D.pdf?version=1&modificationDate=1504013260000&api=v2>*

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