Sub-group Members: Andrew Mack, Avri Doria, Bastiaan Goslings, Brett Schaefer, Corrine Cath, David McAuley, Erich Schweighofer, Greg Shatan, Griffin Barnett, Harold Arcos, John Laprise, Jorge Cancio, Kavouss Arasteh, Mark Carvell, Markus Kummer, Matthew Shears, Niels ten Oever, Nigel Roberts, Paul McGrady, Robin Gross, Rudi Daniel, Samantha Eisner, Steve Metalitz, Tijani BEN JEMAA, Par Brumark, (26)
Observers: Cheryl Langdon-Orr, Isabel Rutherfurd, Paloma Szerman, RW Bentley. (4)
Staff: Karen Mulberry, Brenda Brewer, Yvette Guigneaux. (3)
Apologies: Tatiana Tropina, Anne Aikman-Scalese (2)
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
Transcript
Recording
Adobe Connect Replay: https://icann.adobeconnect.com/mssi-projects/
Agenda
1. Administrivia
Roll call, absentees, SoIs, etc
2. Final Discussion on: Summary on what was agreed and discussed on human rights during WS1 (attached and here:
https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNMoZb4/edit?usp=sharing
)
3. General Discussion & Q&A on Ruggie Principles and Ruggie FIFA report (attached and here:
http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
https://www.hks.harvard.edu/content/download/79736/1789834/version
/1/file/Ruggie_humanrightsFIFA_reportApril2016.pdf )
4. Discussion on: Analysis of Ruggie Principles for ICANN – Short presentation by Drafting Volunteershttps://docs.google.com/document/d/10XMIVosuEfgmXwr7SQjeNLKI8r_hdONrJNV2ih72V80/edit
5. AOB
Notes
1. Administrivia - Roll call, absentees, SoIs, etc
Review of the draft agenda, agenda adopted.
2. Analysis of Ruggie Principles for ICANN and drafting teaumry provided by Greg remarks reasonable support for Ruggie principles but need to analyze the specific onces to see which ones apply to ICANN's core values and which ones do not apply. and to what degree they apply. Need to discuss specific principles to determine what can be supported and to develop a framework of implementation. Need to make the work more detailed and constructive to move forward. Question raised as to if ICANN is a business enterprise, as ICANN is a non-profit.
3. Discussion of specific Ruggie Principles
- Principle:Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.
Discussion - Enterprise or non profit, raised concern of the use of the term address and should/may and the meaning/application of the term to ICANN, Question does this work for the ICANN context is the approach recommended to be taken. organization is more like business enterprise - principle appears to have a lot of flexibility - something to be mindful of in considering, this is more of guideance for decisions for ICANN, should not be considered as expansion of ICANNs mission, the bylaw mentions applicable law that deals with human rights, need to look at what the applicable law is, Question raised as to if ICANN is purely a business enterprise - clearly is not ,ICANNs remirt and methods of action is not business enterprise, areas where ICANN does not fuction as a busness enterprise that the Ruggie principles do not apply to ICANN core values, need to look at the bylaw, suggestion to address the issues one by one, need to understand the laws on human rights and then how applicable to ICANN, intent is to determine whether ICAANN should be subject to human rights and is ICANN avoiding its obligations in a core value, bylaws and addressing adverse human rights in which it is involved, ICANN responsibilities bound by applicable law,
- Principle - The responsibility of business enterprises to respect human rights refers to internationally recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and
the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.
Discussion - role of ICANN and how to include it in applicable law
4th Ruggie Principle - Question as to the extend we can apply human rights to ICANN - human rights are carried out and obligations are embedded in state laws that non state actors must follow, how expressed in applicable laws determines with obligations that need to be followed, suggestion Section b does not apply and should be tossed out completely, need to move discussion to list as to whether to keep section b or remove, question as to whom do you seek, to prevent, work to take this text to the ICANN example off list and address at the next session.
Documents Presented
Chat Transcript
Yvette Guigneaux: Welcome to the WS2 - Human Rights Subteam Meeting #6 20 September @ 19:00 UTC
Kavouss Arasteh: Dear Yevette
Kavouss Arasteh: Good Afternoion
Kavouss Arasteh: Good Afternoon
Kavouss Arasteh:Pls kindly advise to dial me in
Yvette Guigneaux:Good afternoon Kavouss
Yvette Guigneaux:working on dialing you in now =)
Nigel Roberts:Hello
John Laprise:Hi all.
Kavouss Arasteh:Dear Yevette
Kavouss Arasteh:I was called and asked to press 1 .I did but I was not connected.
Kavouss Arasteh:May you advise to dial in again
Kavouss Arasteh:Tks
Yvette Guigneaux:no worries, we will do a re-dial
Yvette Guigneaux:yw
Kavouss Arasteh:tks
Pär Brumark (GAC Niue):Hi all!
jorge cancio (GAC Switzerland):hello all
jorge cancio (GAC Switzerland):4th call in a long day...
David McAuley (RySG):Brenda I am 8222
Brenda Brewer 2:Thank you David!
Avri Doria:we should nicname this the orange meeting.
Niels ten Oever:Orange is the new black
rudi daniel:good day all
jorge cancio (GAC Switzerland):I cannot agree with that ex-ante assumption. The agreement is to analyze each principle and see whether they are in or out or to what degree
Nigel Roberts:I reinterate that the 'Paul Twomey concern' is misconceived and does not take into account the reality of the relationship between ccTLDs and ICANN
Markus Kummer:This is a useful exercise!
jorge cancio (GAC Switzerland):what means "address" and "adverse human rights impacts" - is that something we could tackle and adapt?
Nigel Roberts:As set out in the Framework of Inerpretation
Brett Schaefer:"Address adverse human rights impacts" how? Is it an obligation? And to what extent?
jorge cancio (GAC Switzerland):as to Paul Twomey: I think somebody was going to circulate his remarks during ws1... but I have not seen anything on list
Nigel Roberts:Brett: I submit those are precatory words.
Brett Schaefer:Nigel, if so, that should be made explicit.
Nigel Roberts:ICANN is a business in much of what it does.
Paul McGrady:Would like to lodge my continued object to starting with looking for fixes in the Ruggie Principles without even identifying what human rights aspects already apply to ICANN by operation of law. Seems inefficient in the extreme to go looking for solutions to problems that have yet to be identified.
Nigel Roberts:With respect to kavouss, that is not what 'address' means in this context. It means 'to deal with'
Brett Schaefer:Paul, I agree.
Brett Schaefer:Adobe only, not on audio
Nigel Roberts:Paul, Brett: No human rights aspects apply to ICANN by operation of law-- that's the point. Humarn Rights obligations only apply by law to state actors.
Paul McGrady:@Nigel: incorrect
Nigel Roberts:Authoity for that proposition?
Kavouss Arasteh:iF THAT IS THE CASE ,WHY NOT WE USE " RECOGNIZE" ,UNDERTAKE
Paul McGrady:California State and local laws, federal laws, the US contitution as applied by the Supreme Court.
Kavouss Arasteh:aVRI
Kavouss Arasteh:wHY NOT USING SHALL
Erich Schweighofer:Third-party effects of human rights apply ...
Markus Kummer:I agree with Avri: should is quite high in the pecking order - stronger than could or may...
Kavouss Arasteh:i THANK nIGEL BUT i AM NOT CONVINCED WITH YOUR UNDERSTANDING
Harold Arcos:@Niguel kindly I underline everyone have responsability to avoid infringing on the HR of others, States, citizens and corporations, I see other aspect of this topic.
Kavouss Arasteh:Address should be replaced by different word such as Undertake or recognize and ...
rudi daniel:address in mind includes respect And icann is. not for profit business enterprise surely.
Brett Schaefer:Have we established what HR areas the ICANN mission and scope could possibly infringe on? That would limit the universe of possibilities and focus our attention. I remember this a bit in Helsinki and saw some discussion in the various documents, but has it been resolved?
Kavouss Arasteh:If in mind ,address means respect why not clearly mention that
Paul McGrady:I see no reason to revert to Mr. Ruggie if we aren't even at an impasse on what these principles, which are looking at prematurely, mean.
Nigel Roberts:Brett: the partiicular rights that sping to mind are
Nigel Roberts:1. Fairhearing
Nigel Roberts:2. Freedom of Expression
Nigel Roberts:3. Righr to property (including intellectual propert)
Nigel Roberts:4 Right to priate an family life
Nigel Roberts:There may be others that are relevant but those are the obvious ones
Brett Schaefer:NIgel, I agree. Why not focus on the Ruggie principles and other HR documents directly related to those and focus there? HR is too big a universe to encompass in its entirety here.
matthew shears:+ 1 David
Bastiaan Goslings:+10
Avri Doria:not where they migh ecist, but where they are invovled.
Avri Doria:... might exist ...
jorge cancio (GAC Switzerland):We are here to interprete these principles - not to taransplant them "1 by 1"
Greg Shatan:Paul "Applicable Law"" McGrady speaking....
Bastiaan Goslings:Ruggie takes a much broader perspective than 'applicable law'
Nigel Roberts:I would be very content to deal with applicable law, since it will be fairly straight forward IMO
Bastiaan Goslings:See e.g. the commentary notes
Bastiaan Goslings:The responsibility to respect HRs exists over and above compliance with national laws and regulations protecting human rights
Bastiaan Goslings:that is way beyond the vore value
Bastiaan Goslings:core value
Nigel Roberts:No, that is incorrect. Unless you habe a California equivalent of the UK's HUman Rights act, and that it appies to non-state actors
Nigel Roberts:In short there is NO applicable law that puts human rights obligations on ICANN EXCEPT IN SO FAR IT VOLUNTARILY AGRESS TO IT
Greg Shatan:ICANN's commitment is bounded by applicable law, as David points out. So whatever ICANN's particular commitment is, it does not go past applicable law into "soft law."
Nigel Roberts:See the .XXX IRP judgment
Avri Doria:applicable law is neessary but not sufficient for repsecting human rights
Bastiaan Goslings:@avri: then the core value has to be changed?
Nigel Roberts:No. Applicable law permits ICANN to infringe on human rights .e.g by contract.
Paul McGrady:There is no doubt that it is abusiness enterpise. It collects funds from second level domain sales and sells the right to run a TLD registry.
matthew shears:agree Greg - policy core in a corp structure
Nigel Roberts:Agree with Paul. Debating the meaning of busness is pointless
Cheryl Langdon-Orr (CLO):AGree Greg / Matthew
Nigel Roberts:In Ruggie it's used to distinguish from state actor
David McAuley (RySG):In interpreting ICANN's commitment we cannot ignore that commitmennt - and it is fenced by applicable law.
Bastiaan Goslings:Well spoken Greg
David McAuley (RySG):Good point Greg about guide
Bastiaan Goslings:I totally agree with Greg
Nigel Roberts:State actors are legally compelled. But Business enterprises "should" which means a moral obligation.
matthew shears:agree with Greg - we need to look carefeully at the framing of he bylaw, etc.
David McAuley (RySG):ICANN can "respect" HR by, for example, seekinh human rights impact analysis in PDPs
Cheryl Langdon-Orr (CLO):Yup
Nigel Roberts:Aye
jorge cancio (GAC Switzerland):yep
jorge cancio (GAC Switzerland):that's one important means
Nigel Roberts:In fact, I sumbit that part of ICANN (the GAC, or at least the subset of it that represent Council of Europe member states) are legally obliged in this direction ...
Andrew Mack:ugh
matthew shears:"wrap a ruggie" - fabulous
Bastiaan Goslings:hahaha
Nigel Roberts:We are talking about ICANN or I@m in the wrong room
Greg Shatan:The Ruggie commentary states "Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediiation."
David McAuley (RySG):That's a good point Greg and involves acions exceeding bylaw language, IMO
jorge cancio (GAC Switzerland):lots of leeway in that language...
Mark Carvell UK GAC Co-Chair HRILWG:I read "address" in thsi context to mean "deal with" so is appropriate.
Nigel Roberts:+1 Mark
Bastiaan Goslings:Interesting to see that Ruggie does not clarify in in his comments the 'impacts with which they are involved'
Bastiaan Goslings:Involved?
Brett Schaefer:Greg, the Core Value says "This Core Value does not obligate ICANN to enforceits human rights obligations, or the human rights obligations of otherparties, against other parties." Does not seem consistent with Ruggie commentary states "Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediiation."
Niels ten Oever:@Brett - address adverse impacts can only be on an organizations own actions. Not necessarily third parties.
Nigel Roberts:So for example ICANN should address its due process defects
Nigel Roberts:+1 Niels
Niels ten Oever:Sorry, there was a typo in there
David McAuley (RySG):This sentence also appears in bylaw language at section 1.2(b)(viii): This CoreValue does not create, and shall not be interpreted to create, anyobligation on ICANN outside its Mission, or beyond obligations found inapplicable law.
jorge cancio (GAC Switzerland):Is that language mentioned by Greg not covered by principles that come later in the UN Guiding Principles?
rudi daniel:I agree that we should define applicable laws which would impact ICANN in relation to human rights.
Nigel Roberts:I think it was designed to be impossible to interpret...
rudi daniel:+1 yes ano overarching view of applicable law
Avri Doria:oh my yes, we want to avoid ethics at ICANN by all means possible.
Greg Shatan:We should be ethical, but we can't look to this bylaw for that purpose.
Brett Schaefer:@Niels, "address adverse impacts can only be on an organizations own actions. Not necessarily third parties." You sure? Why include necessarily?
Kavouss Arasteh:Applicable law is " Applicable Law"
jorge cancio (GAC Switzerland):I guess we have to be mindful that the commitment has to be construed in a way that it has meaning, purpose and an added-value...
Nigel Roberts:Can I introduce this as authoirty for my contention that Human Rights law does NOT apply to Non State Actors except where they volunarily adopy.
Nigel Roberts:http://www.lawschool.cornell.edu/research/ILJ/upload/Ronen-final.pdf
Avri Doria:i do not think we are jumping ahaead inapporopriaitely
Greg Shatan:David, thanks for that second sentence. It underlines the applicable law boundary.
Paul McGrady:@Avri - why?
Avri Doria:i think wlaking though these principles and understanding them and their possible applicabilty is a very worthwhile activity for this group.
Paul McGrady:@Avri - don't disagree, if and when we get there.
Paul McGrady:We just aren't there yet.
jorge cancio (GAC Switzerland):I don't see anything in this principle that should be problematic
Avri Doria:i think we are there. and we will get to applciable law and it catelgoing if necessary at the some point.
Andrew Mack:@Paul, when you are asking to "address applicable law", what exacty are you asking for? just want to understand what the finish line looks like
Paul McGrady:@Andrew, same as mentioned on the last call and in the chat, namely, which human rights laws/regulations alredy apply to ICANN by operation of being a California corporation and employer
Avri Doria:the set of applicable laws and their scope is indefinately large, epsecialyl when looked at in terms of where ICANN does business (there is that business word)
Andrew Mack:@Avri, that is what I am trying to get at -- to define where our bounds are
David McAuley (RySG):agree with Greg - applicable law is at the end of the day decided by courts - it exists and ICANN is bound by it despite it being large and global
matthew shears:agree with that Andrew
Avri Doria:While is is a bounded set, it is an indefintaely large, and constantly changing set.
Bastiaan Goslings:@avri - I tend to agree, but doesn't ICANN already have to abide by all 'applicable law' withing the jurisdictions it operates in?
Greg Shatan:Is ther a Declaration on Fundamental Principles and Rights for Volunteers?
Greg Shatan:That's incorrect. Many human rights have been embodied in applicable law, and ICANN is obligated to follow those lines.
Cheryl Langdon-Orr (CLO):I would have thought so Greg
David McAuley (RySG):I thik what Nigel is suggesting goes beyond the bylaw language
Bastiaan Goslings:@Greg - indeed, like the ECHR
Paul McGrady:Thanks Nigel. Disagree that human rights are not the subject of federal, State, and local laws some of which are applicable to CA business actors. See http://humanrelations.co.la.ca.us/
Samantha Eisner:@Nigel, ICANN could not change the scope of or reach of the UDRP independently; a change like that would come through teh PDP
matthew shears:agree David
Paul McGrady:@Nigel, thanks but just incorrect.
Nigel Roberts:Sam that is correct, When I say ICANN I imean it.
jorge cancio (GAC Switzerland):could somebody clarify (with reference to the Ruggie Pples Guidance) that this para serves as a reference to a list of international HR instruments?
matthew shears:this is a min for ruggie
Nigel Roberts:PaulL You can make assertions, but provide authority. The premable to that paper clearly expresses the point
Nigel Roberts:Neils: Probaby not a good time to ask that q with only 10 mins lef t ;-)
Avri Doria:i think people misread the bylaws. we cannot infringe international law in our repsect of human rights, it does not say that we only have to respect hr with applicable law.
Paul McGrady:NIgel, I provided a link in the chat for the Los Angeles Commission on Human Relations which deals with certain human rights issues. just one of a myriad example of local regulations dealing with this issue. Now, I ask that you provide support for your assertions about US law.
David McAuley (RySG):the word "address" appears again and is very broad, too broad IMO
jorge cancio (GAC Switzerland):agree with Avri
Niels ten Oever:@avri - that seems consistent with art 4 of the articles of incorporation.
Nigel Roberts:Private business can violate human righrs perfectly legally
Tijani BEN JEMAA:Sorry, I was dropped
Cheryl Langdon-Orr (CLO):I have (as others no doubt do) another ICNN call at top of the hor, so will need to leave this call a bit ahead of the normal ending time Apols in advance for this... BUT our deliberations here are useful, important and do need to be continued as we move towards a drafting *of* a FRamework of Interpretation re HR
David McAuley (RySG):The word "mitigate" and the phrase after "even if" appear problematic in the slide on screen
David McAuley (RySG):to (b) or not to (b)
matthew shears:it says "... within the scope of its Mission and other Core Values, respecting internationally recognized human rights as required by applicable law. "
jorge cancio (GAC Switzerland):(b) makes sense as a principle
Nigel Roberts:Are we not going to hear fron Prof Rugfie on this before tossing out his pricniples?
Avri Doria:hope so Nigel
jorge cancio (GAC Switzerland):"prevent" and "mitigate" leaves a lot of space to how construing these principles
Paul McGrady:@Nigel - thanks for making my point. The resistance to looking into what rules/regulations already apply to ICANN doesn't seem to be based on an understanding of the law applicable to California corporations.
Avri Doria:actually i hope we do not throw out anything before we understand it.
Bastiaan Goslings:I think b is in conflict with 1.1. c of ICANNs mission
jorge cancio (GAC Switzerland):why?
Niels ten Oever:We're not tossing anything out or in - this is just a first reading.
matthew shears:not throwing the out but rather focussing where we need to first
Nigel Roberts:Paul: What you are referring to is dealt with to some extent in ICM Registry -v- ICANN
Bastiaan Goslings:@Jorge: 'CANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.'
Paul McGrady:@Nigel, I'm not sure that a reference to an IRP is the same thing as a serious look at what laws/regulations already apply to ICANN.
David McAuley (RySG):on mute?
Avri Doria:must drop off now. bye.
jorge cancio (GAC Switzerland):well, if that is part of the Mission, it is clear that it is out of scope when implementing (b)
Mark Carvell UK GAC Co-Chair HRILWG:I read "seek" as meaning "apply best endeavours"
Nigel Roberts:Paul: Please take a look at the very serious analysis of the leaned judge in that case
Nigel Roberts:+1 Mark
jorge cancio (GAC Switzerland):quite clear to me (as a lawyer and policy-drafter)
Kavouss Arasteh:I also suggest to delete b) totally
Cheryl Langdon-Orr (CLO):Bye need to go talk again soon... Thanks all
Markus Kummer:Let's not rewrite the Ruggie Principles before we have a clear understabding of what they mean. They are the result of a multi-year process, after all.
Andrew Mack:Inot sure why this didn't work
jorge cancio (GAC Switzerland):Please remember: interpretation/implementation of these principles would always be bound by the Mission remit
Markus Kummer:Bye all -- good call!
David McAuley (RySG):Thanks Niels, Nigel, staff and all, good bye
Niels ten Oever:bye all
jorge cancio (GAC Switzerland):bye all
