Sub-group Members: Andreea Brambilla, Avri Doria, Cheryl Langdon-Orr, David McAuley, Greg Shatan, Griffin Barnett, Janet Shih Hajek, Kavouss Arasteh, Lousewies van der Laan, Markus Kummer, Niels ten Oever, Paul McGrady, Shreedeep Rayamajhi, Tatiana Tropina (14)
Observers/Guests: Iren Borissova
Staff: Anne-Rachel Inne, Bernard Turcotte, Brenda Brewer, Elizabeth Andrews, Karen Mulberry, Patrick Dodson (6)
Apologies: Jorge Cancio, Herb Waye, Matthew Shears
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
Transcript
Recording
Agenda
1. Administrivia
Roll call, absentees, SoIs, etc
2. First reading (of two) of the Considerations document prepared by the drafting team
3. AOB
Notes (including relevant portions of the chat):
14 Participants at start of call
1. Administrivia - Roll call, absentees, SoIs, etc
Apologies: Jorge Cancio, Herb Waye, Mathew Shears
Niels ten Oever - Audio only? (AAS). Any update to SOIs (none). May of been premature to call this a first reading but if we agree today it would allow us to have a meeting next week to have a second reading to submit to the plenary.
David McAuley (RySG): are we meeting next week?
Paul McGrady: Not everyone is going to make it to the face to face due to the way the meeting schedule turned out
Kavouss Arasteh: There is no Plenary before Copenhagen
Anne Aikman-Scalese: Next week Tuesday meeting would be hard for those travelling from far.
Tatiana Tropina: I put red tick as while I think it would be good, I am very much against excluding those who can't make this call next week
Greg Shatan: That will also be too late to submit a document for the Plenary.
Tatiana Tropina: Greg, yes.
Kavous Arasteh: There is no meeting scheduled for next week and my points have not been addressed.
Niels ten Oever - temperature check to have a meeting next week (no support). Ok will advise Co-Chairs that we will not have a document for the face to face.
Tatiana Tropina: this is of course sad but we can't compromise on the quality and inclusion :-)
Niels ten Oever - should we look at the JC document or my version?
Kavouss Arasteh - I have also sent a revised version why is not being considered?
Niels ten Oever - KA your comments have already been integrated in the document.
Anne Aikman-Scalese - I have not seen it so if we use it can you be specific.
2. First reading (of two) of the Considerations document prepared by the drafting team
Tatian Tropina - (reading document).
Paul McGrady - could we deal with one para at a time. On para 1 seems inconsistent. No definition of DECLERATION. Now we have OTHER INSTRUMENTS which are also undefined. Then we get into COVENANTS which is also undefined. We need to clean this up and call it one thing consistently throughout the document.
Greg Shatan: Maybe we should use "conventions and other instruments" as used in the "consideration".
Tatian Tropina - PM thanks this is very useful. If we use the language from Annex 12 would this meet the requirement.
Paul McGrady - The definition can be broad we use anything we want and then use it consistently it will be fine.
Tatiana Tropina: But for the substance we use the "HR conventions or other instruments" as in the Annex 12
Niels ten Oever: But for interpretation we might also use UDHR, no?
Kavouss Arasteh - Agree with PM but still have issues with the first para given agreements are one thing but declarations are something else - you cannot mix these things as states have not agreed to all these things - maybe just drop the first sentence.
Tatiana Tropina: that this means declarations, conventions, Bills, etc widely agreed internationally
avri doria: Since none of it is binding on ICANN, it really does not matter who signed or implemented.
Paul McGrady: Human Rights conventions, agreements, declarations, conventions, covenants, and instruments (collectively "Human Rights Documents")
Paul McGrady: +1 Avri
Tatiana Tropina: Paul, inserting this in the google doc - thanks much much!
Niels ten Oever - good suggestions for the drafting team.
Greg Shatan: "Documents" seems a bit too generic -- I would prefer that we use "conventions and other instruments" each time.
Markus Kummer: "internationally agreed human rights instruments" ?
Tatiana Tropina: Greg, that's what I suggested while speaking, but we can fine tune for the next call
avri doria: i like conventions and other instruments as well
Paul McGrady: (collectively "Human Rights Cannon")
Tatiana Tropina: we have to follow the language of annex 12 but still implement Paul's corrections
Niels ten Oever: "States are parties to these document"
Markus Kummer: instrument is the usual overarching term used in international law
Greg Shatan - Need to reflect that whatever we define is aimed at States.
Tatiana Tropina - lets put all the comments in the Googledoc and the lawyer it up to make consistent.
Kavouss Arasteh - You cannot use INSTRUMENTS sometimes this is more than conventions or not. Still suggest we drop the first part.
Avri Doria - Irrelevant how many states have agreed to these things does not matter since they are not applicable to ICANN.
Greg Shatan: +1 Avri.
Paul McGrady: +1 Avri
Tatiana Tropina: + 1 Avri - very much to the point.
Janet Shih Hajek: Instead of Human Rights conventions are agreements between states,” why not just start with “ICANN, as a non-state private party, is not a party to any Human Rights convention or other human rights instrument. However, ICANN could refer to any of the widely adopted Human Rights conventions and other instruments . . . “
Tatiana Tropina: there is nothing all countries
Kavouss Arasteh: Disagree with AD, agreed with states causes problem need to fix.
Tatiana Tropina - (reading next section). Not happy with JC proposed language but can live with it.
David McAuley (RySG): Agree w/Tatiana on this
Kavouss Arasteh - do not agree with JC language.
Greg Shatan - KA proposal not much different and we can replace CONSENSUS with AGREEMENT.
Tatiana Tropina: yes this should be fine. It makes no big difference for me, but if it's very critical for someone let's replace
Paul McGrady - do not understand how the second and third paras fit together. I think we were considering if they were binding and para should say it is not. Para 3 just says what we say in para 1 but only about 1 thing. Para 2 needs to be stronger and there does not seem to be a reason for para.
Tatiana Tropina - the problem is because of the definintion of UN guidance on HR for Business. As to para 2 the recommendation has been watered down to have a compromise because some people still think they should be binding.
David McAuley (RySG): I think paragraph 2 is fine and accurate
David McAuley (RySG): And agree w/Tatiana that the language was crafted with compromise in mind
Paul McGrady: @Tatiana - thank you. That discussion is helpful and explains why we need paragraph 3.
Kavouss Arasteh - tend to agree with PM. If you want to maintain para 3 it should be before para 2. But do not favour keeping para 3. If kept should be reworded to show there is not consensus on the matter.
Greg Shatan: Paras 2 and 3 deal with interpretation and implementation of the Guiding Principles, respectively.
Paul McGrady: Once we ake it clear that Guiding Principles are not part of the Human Rights Documents contemplated in paragraph 1, I think paragraph 3 makes sense now.
avri doria: para 3 is important and it is the saving grace of the section.
Paul McGrady: @Avri - :)
Anne Aikman-Scalese - We need to be clear for the Board on the Ruggie principles other it will be a recipe for trouble.
Taiana Tropina - 3rd para was a compromise from the last version. Would be happy not to have it but it would probably cause an issue so we will keep it and fix it.
David McAuley (RySG): The interpretation of the bylaw cannot undo the bylaw – it will be binding if it is international recognized under applicable law – that may differ from place to place
Greg Shatan - Have looked up HR Instruments do not include Ruggie and would suggest that para 2 and 3 are out of scope.
avri doria: and time to time
David McAuley (RySG): agreed, @Avri
Niels ten Oever: UNGPs are a softlaw instrument
Tatiana Tropina: oooooooohhhh that's too radical even for me.
Kavouss Arasteh - if we drop para 3 then we can drop 2 also. Guiding cannot be binding.
Tatiana Tropina: Wow, I find myself in disagreement with Greg, finally! :-)
Niels ten Oever: https://en.wikipedia.org/wiki/United_Nations_Guiding_Principles_on_Business_and_Human_Rights
Niels ten Oever: And Kavouss and Greg aligned
avri doria: deletion of Ruggie comes close to some of our die in the ditch regions
avri doria: a UN agreed doc is in scope!
Paul McGrady: To say nothing about it after all this work on it, doesn't seem productive. Greg, can you find another place in this document to address the Guiding Principles?
David McAuley (RySG): We should address Ruggie as not reaching consensus - we spent considerabl;e time on it
Tatiana Tropina - As AD has stated Ruggie principles will be die in the ditch for some. It may be best to actually deal with this in the document because it would create ambiguity going forward
Niels ten Oever: Then Paul asked a question, we explained, and now everything is up in the air
Niels ten Oever: am a bit surprised
avri doria: i think the 3 para is the right solution
avri doria: there was a sophistic twist on the matter of scope. but denying scope to an UN aggreed document in scope abuse.
David McAuley (RySG): I agree w/Niels on this - the language was carefully put together
Greg Shatan - My suggestion to remove the paras has nothing to do with Ruggie but rather simply if it is in scope or not.
Tatiana Tropina: I think it should be treated with caution instead of leaving the things blank. remember the jurisdiction debate.
Niels ten Oever: Ruggie is an instrument - there is no doubt about that
Tatiana Tropina: David, yes. And the Ruggie principles is like elephants in the room
Tatiana Tropina: we don't have to redefine terms instruments but we have to note that they are not instruments. Yes, seems like a good suggestion
avri doria: here we go again.
Tatiana Tropina: Agree with David's last comment
Tatiana Tropina: We can't ignore Ruggie, this will be reopened at one point and we have to deliver.
Paul McGrady: "could be" is not "must be"
Kavouss Arasteh - We do not use Ruggie to interpret the Bylaw - we can use it to interpret Human Rights. What is the definition of a HR Core Value?
Paul McGrady: Let's add the caveat and save the hard work we have done on dealing with Ruggie.
Tatiana Tropina: Oh I would be happy with deleting the para 3 but many will die in the ditch for this
Greg Shatan: We are calling it the "Human Rights Core Value."
Greg Shatan: Core Value is singular and refers only to that Core Value that refers to human rights.
Tatiana Tropina: Paul, this seems like the best solution. And yes, the text has to be clarified. As I said already in all the fights about the substance we are sometimes paying more attention to compromise than the quality and clarity of the explanation
Greg Shatan: Core Values is plural and would refer to all the Core Values.
Kavouss Arasteh: Greg, it is wrong to call it Core Value
Tatiana Tropina: Paul has been our reality check - thanks so much Paul.
Greg Shatan: That is exactly what it is.
Kavouss Arasteh: Why you wish to generalize it to cover all core values
Tatiana Tropina: Avri, we have to mention them. I agree - being an opponent of Ruggie.
Paul McGrady: We need to tell the plenary about the work we did on this. We can't just leave it blank...
Avri Doria - going at this again. Trying to use the definition to get Ruggie out is not valid. As such disagree with this.
Tatiana Tropina: Avri, yes. The para is carefully crafted consensus and we have to leave it there (may be fine tune)
David McAuley (RySG): Bylaw 27.2(a) says: The Core Value set forth in Section 1.2(b)(viii) shall have no force or effect unless and until a framework of interpretation for human rights ("FOI-HR") ...
Tatiana Tropina: I do dislike saying this because I was against the para 3, but I think we have to take this into consideration
Niels ten Oever - should go back to the drafting group. Adjourned.
Documents
AC Chat Transcript
Yvette Guigneaux: (2/28/2017 00:34) Welcome all to the Human Rights Meeting #22 | 28 February 2017 @ 19:00 UTC!
Brenda Brewer: (12:43) Considerations google doc may be found here: https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AItZjkY_edit&d=DwIFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kbiQDH54980u4nTPfwdloDLY6-6F24x0ArAvhdeDvvc&m=8SjcN7MRGs968RG-ThSoV4_4xGPQc_Hk7b8GsvUDmzQ&s=G1QsbTsRgIW5FQDeJGX9EQ7kPqRzBpfGE5MRNZQMGxE&e=
Bernard Turcotte Staff Support: (13:00) hello all
Shreedeep Rayamajhi: (13:00) hello
David McAuley (RySG): (13:03) are we meeting next week?
Paul McGrady: (13:04) Not everyone is going to make it to the face to face due to the way the meeting schedule turned out
Kavouss Arasteh: (13:04) There is no Pléenary before Cpenhagen
avri doria: (13:05) peple will either be travelling or about to travel
David McAuley (RySG): (13:05) and i don't see it on calendar so assumed was not on
Paul McGrady: (13:05) Feeling rushed
Bernard Turcotte Staff Support: (13:05) That would be tuesday 7 March
Bernard Turcotte Staff Support: (13:06) and there is not slot reserved
Brenda Brewer: (13:06) Tics are located under the figure with hand up on the top menu bar
Tatiana Tropina: (13:06) I put red tick as while I think it would be good, I am very much against excluding those who can't make this call next week
Greg Shatan: (13:06) That will also be too late to submit a document for the Plenary.
Tatiana Tropina: (13:06) Greg, yes.
Greg Shatan: (13:06) Deadline is March 3.
Niels ten Oever: (13:06) Co-chairs said on the call they would be OK to facilitate that
Niels ten Oever: (13:06) But the message from the ticks is clear
Tatiana Tropina: (13:07) this is of course sad but we can't compromise on the quality and inclusion :-)
Paul McGrady: (13:08) I don't understand the question...
Tatiana Tropina: (13:09) Well I assume we have to discuss Jorge's suggestions
Tatiana Tropina: (13:10) Niels, why don't we add suggestions to the google doc and pull the new doc up?
Brenda Brewer: (13:11) one moment please
avri doria: (13:12) drafting team
Tatiana Tropina: (13:12) Greg.
Tatiana Tropina: (13:13) Ok I can start
Paul McGrady: (13:13) I can't see the footnote...
Paul McGrady: (13:13) Thanks!
Greg Shatan: (13:14) Got cut off!
Bernard Turcotte Staff Support: (13:15) hand
Paul McGrady: (13:15) Could we deal with 1 paragraph at a time?
David McAuley (RySG): (13:16) I'm lost
Tatiana Tropina: (13:16) Oh ok pk cool sorry
Greg Shatan: (13:17) I'm back.
Greg Shatan: (13:18) Maybe we should "conventions and other instruments" as used in the "consideration".
Tatiana Tropina: (13:18) greg +1
Tatiana Tropina: (13:18) going to address this comment
Tatiana Tropina: (13:19) hand up
Niels ten Oever: (13:20) Is the UDHR and instrument or an convention?
Niels ten Oever: (13:20) I think that is a declaration, no?
Niels ten Oever: (13:20) Declarations, conventions, instruments seems to cover it all
Tatiana Tropina: (13:20) yes we can used either in the beginning of the para or in the footnote.
Niels ten Oever: (13:20) Agree
Tatiana Tropina: (13:21) But for the substance we use the "HR conventions or other instruments" as in the Annex 12
Niels ten Oever: (13:21) But for interpretation we might also use UDHR, no?
Tatiana Tropina: (13:21) if they are defined we are fine and consistent. We will have to look at the text interpretation FoI as well for harmonisation!!!!!!
Tatiana Tropina: (13:22) Niels, yes - but that's what we explain
Tatiana Tropina: (13:22) that this means declarations, conventions, Bills, etc widely agreed internationally
avri doria: (13:22) Since none of it is binding on ICANN, it really does not matter who signed or implemented.
Paul McGrady: (13:22) Human Rights conventions, agreements, declarations, coventions, covenants, and instruments (collectively "Human Rights Documents")
Paul McGrady: (13:22) +1 Avri
Tatiana Tropina: (13:23) Paul, inserting this in the google doc - thanks much much!
Niels ten Oever: (13:23) Thanks Paul!
Greg Shatan: (13:23) "Documents" seems a bit too generic -- I would prefer that we use "conventions and other instruments" each time.
Markus Kummer: (13:23) "internationally agreed human rightd instruments" ?
Tatiana Tropina: (13:23) Greg, that's what I suggested while speaking, but we can fine tune for the next call
avri doria: (13:23) i like conventions and other instruments as well
Paul McGrady: (13:24) (collectively "Human Rights Cannon")
Tatiana Tropina: (13:24) we have to follow the language of annex 12 but still implement Paul's corrections
Niels ten Oever: (13:24) "States are parties to these document"
Markus Kummer: (13:24) insrument is the usual overarching term used in international law
Greg Shatan: (13:25) In that case I suggest saxophone.
Greg Shatan: (13:25) "Human Rights Instruments" as the defined term?
Tatiana Tropina: (13:26) well Annex 12 used it....
Greg Shatan: (13:27) We don't say they are agreements aqmong all states.
Greg Shatan: (13:27) Nor could it be implied.
Bernard Turcotte Staff Support: (13:27) Kavouss very muffled - hard for notes
David McAuley (RySG): (13:28) agreed, very hard to hear Kavouss
Greg Shatan: (13:28) +1 Avri.
Paul McGrady: (13:28) +1 Avri
Tatiana Tropina: (13:28) + 1 Avri
Tatiana Tropina: (13:28) very much to the point.
Janet Shih Hajek: (13:28) Instead of Human Rights conventions are agreements between states,” why not just start with “ICANN, as a non-state private party, is not a party to any Human Rights convention or other human rights instrument. However, ICANN could refer to any of the widely adopted Human Rights conventions and other instruments . . . “
Tatiana Tropina: (13:28) there is nothing all countries implemented
Tatiana Tropina: (13:29) and declarations are not binding anyway
Tatiana Tropina: (13:29) :-)
David McAuley (RySG): (13:30) Thank you Janet, worhtwhile suggestion
David McAuley (RySG): (13:31) Agree w/Tatiana on this
Tatiana Tropina: (13:32) replacing agreement with consensus is fine with me
Tatiana Tropina: (13:32) but will it be fine with Jorge?
Greg Shatan: (13:32) Fine with me as well.
Tatiana Tropina: (13:33) yes this should be fine. It makes no big difference for me, but if it's very critical for someone let's replace
Tatiana Tropina: (13:35) I could adress this comment
Niels ten Oever: (13:35) interpretation vs implementation
Niels ten Oever: (13:35) go ahead TT
Tatiana Tropina: (13:36) I agree with Paul
Niels ten Oever: (13:37) I would be hesitant to repeat last weeks discussion.
Tatiana Tropina: (13:37) now disagree with Paul :)
Tatiana Tropina: (13:37) I can address
David McAuley (RySG): (13:38) I think paragraph 2 is fine and accurate
David McAuley (RySG): (13:39) And agree w/Tatiana that the language was crafted with compromise in mind
Paul McGrady: (13:39) @Tatiana - thank you. That discussion is helpful and explains why we need paragraph 3.
Tatiana Tropina: (13:40) hand up again
Greg Shatan: (13:40) Paras 2 and 3 deal with interpretation and implementation of the Guiding Principles, respectively.
Paul McGrady: (13:41) Once we ake it clear that Guiding Principles are not part of the Human Rights Documents contemplated in paragraph 1, I think paragraph 3 makes sense now.
avri doria: (13:41) para 3 is important and it is the saving grace of the section.
Paul McGrady: (13:41) @Avri - :)
Tatiana Tropina: (13:42) Please let me say :-)
David McAuley (RySG): (13:42) The interpretation of the bylaw cannot undo the bylaw – it will be binding if it is internationall recognized under applicable law – thatmay differ from place to place
avri doria: (13:43) and time to time
David McAuley (RySG): (13:44) agreed, @Avri
Niels ten Oever: (13:44) UNGPs are a softlaw instrument
Tatiana Tropina: (13:44) oooooooohhhh that's too radical even for me.
Greg Shatan: (13:44) Citation please?
Tatiana Tropina: (13:45) Wow, I find myself in disagreement with Greg, finally! :-)
Niels ten Oever: (13:45) And Kavouss and Greg aligned
avri doria: (13:45) deleteioj of Ruggie comes close to some of our die in the ditch regions
avri doria: (13:46) a UN aggreed doc is in scope!
Tatiana Tropina: (13:46) My hand is new
Paul McGrady: (13:46) To say nothing about it after all this work on it, doesn't seem productive. Greg, can you find another place in this document to address the Guiding Principles?
David McAuley (RySG): (13:47) We should address Rggie as not reaching consensus - we spent considerabl;e time on it
Niels ten Oever: (13:47) We were actually good with three paras
Niels ten Oever: (13:47) Then Paul asked a question, we explained, and now everything is up in the air
Niels ten Oever: (13:47) am a bit surprised
avri doria: (13:47) i think the 3 para is the right solution
avri doria: (13:48) there was a sophistic twist on the matter of scope. but denying scope to an UN aggreed document in scope abuse.
David McAuley (RySG): (13:48) I agree w/Niels on this - the language was carefully put together
Tatiana Tropina: (13:49) I think it should be treated with caution instead of leaving the things blank. remember the jurisdiction debate.
Niels ten Oever: (13:49) Ruggie is an instrument - there is no doubt about that
Tatiana Tropina: (13:49) David, yes. And the Ruggie principles is like elephants in the room
Tatiana Tropina: (13:49) Greg, yes you are thinking too technically. I fully confirm
David McAuley (RySG): (13:50) We actually came back to these questions which are considerations - I see no probelm describing how we considered them
Bernard Turcotte Staff Support: (13:50) time check: 10 minutes left in the call
Tatiana Tropina: (13:50) we don't have to redefine terms insrtuemtns but we have to note that they are not instruments. Yes, seems like a good suggestion
avri doria: (13:50) here we go again.
Tatiana Tropina: (13:50) Agree with David's last comment
Tatiana Tropina: (13:51) We can't ignore Ruggie, this will be reopened at one point and we have to deliver.
Paul McGrady: (13:51) "could be" is not "must be"
Tatiana Tropina: (13:51) Greg, let's just add the caveat
Greg Shatan: (13:52) Paul what is your suggestion regarding "could be" and "must be"?
Niels ten Oever: (13:52) We replaced that in the google doc Kavouss
Niels ten Oever: (13:52) We already did that Kavouss
Niels ten Oever: (13:52) I also wrote than on the emaillist
Paul McGrady: (13:52) Let's add the caveat and save the hard work we have done on dealing with Ruggie.
Tatiana Tropina: (13:52) Oh I would be happy with deleting the para 3 but many will die in the ditch for this
Greg Shatan: (13:52) We are calling it the "Human Rights Core Value."
Greg Shatan: (13:53) Core Value is singular and refers only to that Core Value that refers to human rights.
Tatiana Tropina: (13:53) Paul, this seems like the best solution. And yes, the text has to be clarified. As I said already in all the fights about the substance we are sometimes paying more attention to compromise than the quality and clarity of the explanation
Greg Shatan: (13:53) Core Values is plural and woiuld refer to all the Core Values.
Kavouss Arasteh: (13:53) Greg, it is wrong to call it Core Value
Tatiana Tropina: (13:54) Paul has been our reality check - thanks so much Paul.
Greg Shatan: (13:54) That is exactly what it is.
Kavouss Arasteh: (13:54) Why you wish to generalize it to cover all core values
Tatiana Tropina: (13:54) Avri, we have to mention them. I agree - being an opponent of Ruggie.
Paul McGrady: (13:54) We need to tell the plenary about the work we did on this. We can't just leave it blank...
Greg Shatan: (13:54) Using the singular does not generalize it.
Greg Shatan: (13:54) Using the plural will.
Greg Shatan: (13:54) We are using the singular.
Tatiana Tropina: (13:54) About Core Value - agree with Greg
Greg Shatan: (13:55) Therefore referring to a single core value.
Kavouss Arasteh: (13:55) There is HR core value
Greg Shatan: (13:55) The Human RIghts Core Value.
Tatiana Tropina: (13:55) Avri, yes. The para is carefully srafted consensus and we have to leave it there (may be fine tune)
David McAuley (RySG): (13:55) Bylaw 27.2(a) says: The Core Value set forth in Section 1.2(b)(viii) shall have no force or effect unless and until a framework of interpretation for human rights ("FOI-HR") ...
Tatiana Tropina: (13:55) I do dislike saying this because I was against the para 3, but I think we have to take this into consideration
Greg Shatan: (13:56) I think we can stick with the overall formulation here in 2 and 3, with the intro that the GP is not an "iconvention or other nstrument"
Tatiana Tropina: (13:56) see you on the Adobe on the F2F and later in CHP!
Tatiana Tropina: (13:56) thanks all :)
Markus Kummer: (13:56) Bye all, thanks!
