Sub-group Members: Avri Doria, Bastiaan Goslings, Brett Schaefer, Cheryl Langdon-Orr, Chris LaHatte, Daniel Appelman, David McAuley, Erich Schweighofer, Greg Shatan, Griffin Barnett, Harold Arcos, Herb Waye, John Laprise, Jorge Cancio, Kavouss Arasteh, Markus Kummer, Niels ten Oever, Nigel Robers, Paul McGrady, Ron da Silva, Tatiana Tropina, Tijani Ben Jemaa (22)
Observers/Guests: Beth Bacon, Lee Hibbard, Taylor Bentley
Staff: Bernie Turcotte, Brenda Brewer, Elizabeth Andrews, Karen Mulberry, Yvette Guigneaux
Apologies: /
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
Transcript
- Word Doc
Recording
The audio recording is available here:
Agenda
1. Administrivia
Roll call, absentees, SoIs, etc
2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI
a. within the scope of its Mission
b. within the scope of other Core Values
c. respecting
d. internationally recognized human rights
e. as required by applicable law
3. AOB
Notes
1. Administrivia
Roll call, absentees, SoIs, etc
No updates for SOI, draft agenda adopted
Niels - Short report sent to the list to meet the 21 Oct date for the Co-Chairs
1. Executive Summary
The CCWG WS2 Human Rights Subgroup has documented the historical context
of the discussions on ICANNs human rights bylaw, which together with the
CCWG report (especially Annex 6 and 12) form it's scope of discussion,
with a Framework of Interpretation of the Human Rights Bylaw as intended
output. The subgroup is currently preparing a Framework of
Interpretation which in due time will be presented to the CCWG plenary
for discussion.
2. Description of the Issue
2.1 Current State of Play
The CCWG WS2 Human Rights Subgroup started of with providing an overview
of the discussions and agreements as they were made during CCWG
Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding
Principles on Business and Human Rights (UNGPs), and their relevance and
applicability for ICANN. While there was consensus that some principles
were relevant for the development for a Framework of Interpretation
(such as 13a and 15a), it was also recognized that the UNGPs have not
been designed with an organization like ICANN in mind. Therefore a
drafting team is currently iteratively designing a draft Framework of
Interpretation which is being discussed in weekly calls. It is expected,
that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report
See [0]
3 Recommendation
3.1 Requirements for Recommendation
We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation
We haven't reached consensus on a recommendation yet.
[0]
Comments on draft text should be submitted to the list
2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI
a. within the scope of its Mission
b. within the scope of other Core Values
c. respecting
d. internationally recognized human rights
e. as required by applicable law
Presentation and discussion of the work of the drafting team by team members. Greg Shatan walked the group through the document starting with the
Mission, seems that the Mission section may not need any further interpretation at this time. Agree that Mission covers core values. It was noted that it
may not be necessary to quote the bylaw. Discussing the general framework of the core values and how they work within the bylaws, n particular for human
rights aspect. Requesting ICANN Legal opinion on relationship between core values. Noted the response from ICANN Legal on 20 Sept. on core values. With
the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test
has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the
commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other.
Suggestion to remove the square brackets in the text as they are not needed. Discussion of how to move forward based on the discussion of the draft from
the drafting team. Do have some parameters that the group is in agreement. Agree that the Ruggie Principals are a source to be used. In particular the
notion of respectfulness Suggestion that the group add some background to the text to explain. No intention to create and automatic application of the
Ruggie Principals, in particular application as to respect.
3. AOB
Documents Presented
Chat Transcript
Brenda Brewer:Good day all and welcome to the Human Rights Subgroup Meeting #10 on 18 October 2016 at 19:00 UTC!
Niels ten Oever:Hello all
Niels ten Oever:Dear staff, could it be that the mic functions are still disabled?
Niels ten Oever:Thank you :)
Yvette Guigneaux:Hi Niels, we're just about the audio rolling
KAVOUSS ARASTEH:HI EVERY BODY
Niels ten Oever:Welcome Kavouss
KAVOUSS ARASTEH:Secretariat, pls advise to call me onm
Markus Kummer:Hi all
Brenda Brewer:All, I have to leave to request a dialout from the vendor operator. I think I will still be announced as leaving, but tech support has put in request for this to be corrected. A work in progress! Thank you for your understanding.
David McAuley (RySG):Hi Brenda, I am 8222
Yvette Guigneaux:Ok David, will do - one host is still in the room so we're good
Cheryl Langdon-Orr (CLO):Hi all
David McAuley (RySG):Thanks Yvette
Harold Arcos:Hello all from sunny Caracas
Tatiana Tropina:hi all, I can't connect my audio bridge, dial in doesn't work, dial out doent's work either
jorge cancio (GAC Switzerland):Hi all - I'm the swiss number
Yvette Guigneaux:Will do Niels
Tatiana Tropina:ok I dialed in!
Tatiana Tropina:finally the German system recognised my code
David McAuley (RySG):ok thanks Niels
David McAuley (RySG):Wordsmithing on list makes sense
David McAuley (RySG):cant hear Kavouss
David McAuley (RySG):fair point Kavouss, sorry about that
Tatiana Tropina:By the way, I am on the german number (3791)
jorge cancio (GAC Switzerland):good point from Kavouss - especially late at night it is sometimes difficult to follow native speakers :-)
Tatiana Tropina:Greg :)
Yvette Guigneaux:You have scroll controll now Greg
Tatiana Tropina:I can take over point. Or can intervene after each section.
John Laprise:I like the format.
Brenda Brewer:Please identify your name if your phone number is listed in Chat as xxxxx3791. Thank you!
David McAuley (RySG):agree with drafters that this point seems clear
Brenda Brewer:Tatiana..I see your note above. thank you!
Tatiana Tropina:This shall be a public holday. Three laywers in HR DT agreed.
David McAuley (RySG):Its a miracle
Niels ten Oever:Rejoice
Nigel Roberts:Folks, my apologies, but I have to leave the meeting around half past the hour.
Tatiana Tropina:Niels, too early, believe me :D
KAVOUSS ARASTEH:While nothing wrong with that quotation, I wonder whether we need that as it is not any interpretation?
Brett Schaefer:After reading through the document, I think it would be etremely helpful if we could delete parts of the text that everyone has moved on from and provide a summary of comments/arguments with attribution. Th ecurrent document has too much comment repetion and edited text to be readily accessible.
Brett Schaefer:sorry for typos.
Tatiana Tropina:Brett, I agree. Four columns and old text is really confusing. We can create a cleaner clone and save this one for the record.
John Laprise:+1
jorge cancio (GAC Switzerland):Agree with Brett that the text is still difficult. Rapporteur and/or staff could do a bit more of cleaning
Tatiana Tropina:I am not on the process
Cheryl Langdon-Orr (CLO):cleaner version would be appreciated yes please links to the bylaw secions makes sense, but this doc is early version so I thank you all for this
Tatiana Tropina:but thsi can be discussed later.
Tatiana Tropina:agree.
Cheryl Langdon-Orr (CLO):hard to hear you Kavous ( at least on my line)
Niels ten Oever:Your audio is quite faint Kavouss
Niels ten Oever:And fading in and out
David McAuley (RySG):agreed, hard to hear
David McAuley (RySG):that is much better
Tatiana Tropina:yes clear.
Tatiana Tropina:We will certainly look at that. Thanks Kavouss.
Nigel Roberts:Although you may not get to item (e) before I have to leave, I would like to ask that we have at least one example of where ICANN is required by applicable law to engage any of the human rights.
Nigel Roberts:And I submit that this document might be helpful to clarifiy the issues.
Niels ten Oever:+1
Niels ten Oever:The second column is easier to read, without all comments. Or at least that way I tried to make it easier for people who wanted to give it a quick read.
Tatiana Tropina:I strongly support Greg's position. The core values are defined in the bylaws and it's hard to say that they are not what they are.
Nigel Roberts:Have a succesful meeting .. I have to leave now.
Cheryl Langdon-Orr (CLO):bye Nigel
Niels ten Oever:Bye Nigel
Niels ten Oever:We did have response on that
Anne Aikman-Scalese (IPC):There was a response from ICANN legal. It arrived just prior to one of our calls There was specific language from ICANN Legal as to this ByLaw.
Greg Shatan:Happy to have other inputs, but not to the exclusion of providing our own guidance.
Karen Mulberry:This was sent by ICANN Legal on 20 Sept in response to a HR request. Dear HR-Subgroup members,I understand that the question posed was "'What is the rationale for the addition of 'core values' to the ICANN bylaws, and what are its legal and non-legal implications in your opinion, especially for the human rights bylaw?”The Core Values have historically been part of the ICANN Bylaws, introduced after the ICANN evolution and reform effort in 2002, https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_about_governance_bylaws_bylaws-2D15dec02-2Den.htm&d=DQIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kbiQDH54980u4nTPfwdloDLY6-6F24x0ArAvhdeDvvc&m=ZG2Tg0zQfDCFK3sf_ZHIc2W3Ag4nIhDvHtxkIGK_eJY&s=NLO62dMc1ArHtor-EVWg8ClRi6k-QZcoIdjau2i7PQs&e= . From 2002 through the Bylaws as they exist today, the Core Values remained unchanged, with the following as guidance for the application of Core Values: "These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors
Anne Aikman-Scalese (IPC):Agree with balancing test. The balancing also needs to be consistent with ICANN existing processes. So, for example, there is a balancing that goes on with respect to PDP work.
Karen Mulberry:con't the staement - With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other.The inclusion of the Human Rights commitment as a Core Value, which was expressly required in Annex 6 of the WS1 report, assures that it is an item that is considered while ICANN is performing its Mission. The implication of this is strong, particularly where the FOI considers how to guide the interpretation of this obligation. Of course, there are already legal obligations that are tethered to human rights obligations (for example, observing laws against human trafficking) that ICANN is already following. Given the long-standing nature of the Core Values section of the ICANN Bylaw
Niels ten Oever:Thanks Karen!
jorge cancio (GAC Switzerland):To sum up - I feel we have common ground on what it means that the HR is a core value here - but the devil is in the details and some rather absolute characterizations of the HR Core Value
Tatiana Tropina:I was also suprised, but I thought it was about drafting team.
Niels ten Oever:We first invite the drafting team to present different parts of the document
jorge cancio (GAC Switzerland):and we need to have clarity on the general relationship between commitments and core values, a question that goes beyond the HR Core Value - and a consistent approach would surely be needed for all core values and commitments, not just the HR one
Tatiana Tropina:Greg+1
Greg Shatan:Reading the second column would be a mistake.
Greg Shatan:Even if it's more "readable."
jorge cancio (GAC Switzerland):the opinion of the group at large would certainly be very welcome on all parts...
Greg Shatan:Tatiana
Tatiana Tropina:Ok I can start
David McAuley (RySG):again having hard time hearing Kavouss
Niels ten Oever:+1
Tatiana Tropina:very hard to hear.
Niels ten Oever:Kavouss - the audio is very bad - could you perhaps make text suggestions per email or maybe even in the Google Doc ?
Cheryl Langdon-Orr (CLO):If someone can repeat what Kavous said please *brief overview* I had too much chop to understand much at all
David McAuley (RySG):good suggestion Niels
Greg Shatan:I think it's important to see the Core Values in the larger context, especially since Commiitments and Core Values are subparts of the same section.
jorge cancio (GAC Switzerland):agree, Greg. But this is not specific to the HR FoI... but a general question about core values and commitments
Brett Schaefer:Just to clarify, the balancing is between the different Core Values only? It is clear and agreed that the Core Values are secondary to Commiments and can under no circumstances violate the Mission? I ask because it is not clear that that is the case based on the reading and discussion.
jorge cancio (GAC Switzerland):I think that is the case, Brett
Brett Schaefer:I am not sure how helpful the ICANN legal contribution (higher in the chat) is considering this statement: "Because they [core values] are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors"
avri:i have trouble understanding how any core principle can trump human rights. but maybe in time i can understand something like that. stranger things have happened.
Brett Schaefer:Seems like we are trying to define something ICANN sees as very maleable.
David McAuley (RySG):Thanks Tatiana, we are getting to the gravamen of our work here
avri:i understand trades-off between human rights, but some other value being more?
avri:oh well we have moved on to the next controversy. so will wait to see the light.
Greg Shatan 2:That is inherent in the HR bylaw being a core value.
Tatiana Tropina:No, the synegry. The HR is guided by the general concept of core values because it's a part of it
Tatiana Tropina:Greg is multiplying :) (Greg 2)
Cheryl Langdon-Orr (CLO):I will need to leave oon as my next ICANN Call starts at top of the hour and my dial out will come in soon, I will try to say in AC here as long as I can though
Greg Shatan 2:AC room crashed and I came back as 2.
Niels ten Oever:Sounds lik a Star Trek episode
Yvette Guigneaux:It does that Greg, not sure why
Yvette Guigneaux:LOL, Niels
avri:accepting ungp as a source is quite a step forward. perhaps not enough, but something.
Tatiana Tropina:I suggested to convert "abstaining" into the positive interpretation "taking into consideration in the policy making etc."
Niels ten Oever:Excellent
Tatiana Tropina:but that shall be balanced with core values and with mission
Niels ten Oever:Very good
Tatiana Tropina:I can suggest the text for the next meeting
Lee Hibbard:the point is that the UNGPs sets out the standard of expectations with regard to human rights. This expectation extends to ICANN to the extent thatit can be considered as an economic actor, just like it extends to an organisation like FIFA.it is reasonable to expect that ICANN is a major economic actor and that it seeks to avoid doing harm to human rights in its activities and through its business relationships
Tatiana Tropina:something like
Tatiana Tropina:“taking into account the necessity to balance the HR core value with other core values, ICANN should take into account human rights in developing its policies and in decision-making processes”
Tatiana Tropina:very rough thought.
Brett Schaefer:@Tatiana, not balanced with the Mission, but within and consistent with the Mission?
Daniel Appelman:Jorge +1
Tatiana Tropina:Brett, yes, needs fine-tuning
Lee Hibbard:respecting human rights requires exercising due diligence to identify, prevent and mitigate the risk of involvement with adversehuman rights impact
Brett Schaefer:I thought that the UNGP were not broadly applicable to ICANN based on the last meeting?
Tatiana Tropina:Lee, by Ruggie.
Lee Hibbard:jorge+1
Tatiana Tropina:But we can come up with a tailored version of respect.
Chris LaHatte:+1 lee
avri:i ofr one never accepted that they were not broadly applicable.
jorge cancio (GAC Switzerland):@staff: to sum up for the notes: "respect" has a positive aspect (adjusting to, promoting consistent action with) and a negative element (not violating and not infringing)
Tatiana Tropina:Brett I thought the same.
Anne Aikman-Scalese (IPC):Wouldn't "respect" in the context of an HR-FOI mean that we would fully consider and appropriately balance Human Rights impact in relation to operations and polcies to be adopted?
Niels ten Oever:The audio is still very muffled Kavouss
Tatiana Tropina:The main point of this group was to get us out of Ruggie stuck.
jorge cancio (GAC Switzerland):Kavouss: the larger group has to discuss and give direction to the small group
Tatiana Tropina:and figure out what we can do to tailor things for ICANN
Brett Schaefer:@Avri, meaning that some UNGP might apply, but not all of them.
avri:but as i am not part of the core group am willing to wiat and see what they come up with.
Greg Shatan 2:I'm back.
Tatiana Tropina:David, yes, I am also concerned.
Greg Shatan 2:Avri, we are a mere drafting group, providing grist for the mill.
Cheryl Langdon-Orr (CLO):Agree with you David
avri:if we are not offending, what is the problem with saying we will mitigate if we do infringe.
Greg Shatan 2:Color me concerned as well.
Tatiana Tropina:David, thanks. I am in a violent agreement.
Bastiaan Goslings:It’s an interesting almost philosophical discussion about ‘respecting’ in the google-doc, and I do not want to be a party pooper
Anne Aikman-Scalese (IPC):I think respecting means we will in fact operofrm the balancing act we have all been discusssing.
Brett Schaefer:+1 David, mitigating or addressingimplies ICANN would action. This goes against the text of the draft bylaw.
Bastiaan Goslings:But I wonder, when looking at the HR core value, whether the ‘respecting’ can be separated from the ‘as required by’ as currently is done in the google doc…
avri:automatic?
KAVOUSS ARASTEH:Niels,What I said was, first of all we need an opening part to the use or otherwise of Ruggy Principle saying that the group has examined various sopurtce, among which was Rufggy Principle and concluded that not all those principle totally applly
Cheryl Langdon-Orr (CLO):Have to move to the other AC room sorry Bye for now
David McAuley (RySG):Bye CLO
Tatiana Tropina:We have to rely mostly on what ICANN is doing and what its remit is and tailor everything within these limits.
Chris LaHatte:it surely means we don't disrespect those rights which then triggers some investigation
Bastiaan Goslings:Bye CLO ;-)
Anne Aikman-Scalese (IPC):We all acknowledge a baalncing must be performed so full consideration of impacts and balancing based on Human Rights consdierations and other Core Values IS respecting.
David McAuley (RySG):I spoke fast, aplogies, but near end of hour
avri:i am still very concern by our avoidance of hr in these discussions.
Tijani BEN JEMAA 2:@Greg +1
Brett Schaefer:@Anne, nto sure I am clear what you mean.
Tatiana Tropina:Greg count me as + 1 as well
Greg Shatan 2:Exciting? You need to get out more often.
Tatiana Tropina:Ahahahaha Greg
Greg Shatan 2:Ideally in an old convertible.
Anne Aikman-Scalese (IPC):@Brett - it is the full consideeration and the balancing act and whateer results from that that contstitutes the respect
David McAuley (RySG):Thanks Niels, staff and all, bye
David McAuley (RySG):three cheers drafting team
Anne Aikman-Scalese (IPC):bye all
Tatiana Tropina:thanks all! Bye
Lee Hibbard:The UNGPs should be seen as a positive instrument to help orient ICANN's valiant efforts to respect human rights in its work
Niels ten Oever:Bye all
jorge cancio (GAC Switzerland):thanks and bye!
Markus Kummer:Bye all
