Sub-group Members: Andrew Mack, Anne Aikman-Scalese, Avri Doria, Brett Schaefer, Cheryl Langdon-Orr, Chris LaHatte, Daniel Appelman, David McAuley, Erich Schweighofer, Greg Shatan, Griffin Garnett, Herb Wayne, Jorge Cancio, Kavouss Arasteh, Markus Kummer, Niels ten Oever, Nigel Roberts, Tatiana Tropina, Tijani Ben Jemaa
Observers/Guests: Hibah Kamal-Grayson, Iren Borissova, Isabel Rutherfurd, Mark Carvell, Taylor Bentley
Staff: Berry Cobb, Brenda Brewer, Karen Mulberry
Apologies: Bastiaan Goslings, Matthew Shears
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
Transcript
Recording
Agenda
1. Administrivie - 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’
f. ‘This Core Value does not create, and shall not be interpreted to, any obligation on ICANN outside its Mission’
g. ‘or beyond obligations found in applicable law’
h. ‘or the human rights obligations of other parties, against other parties’
3. AOB
Notes
1. Administrivia
Role call to be made from the logs
Agenda no changes proposed
Note comment - Kavouss Arasteh: Pls kindly consider my suggestion made at last meeting i.e. whenever we quote a text from Bylaws in second
column, in third column ,if there is no comment to the quoted text we should indicate no interpretation is required
2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI:
Members of the drafting team asked to provide comments on the draft:
Greg provide a summary and noted the forth column that was added of newly suggested text added by the group. Includes both commentary and discussion, some
of the text has ot been entirely discussed but is still a working progress. Fourth column is more logistical than substantive.
Noted Jorge Cancio (GAC Switzerland): the doc on screen is not the last one - it does not include my comments and contributions of today
Latest document located at: Tatiana Tropina: https://docs.google.com/document/d/1XFmkzSFh4CuVR7uWWh6-ZUNii4iVd-jQwx9eZ01CGFw/edit[docs.google.com]
a.‘within the scope of its Mission’
Greg read the text from "within the scope of its Mission"
Question raised by Jorge regarding the text on the screen reflect the changes as of yesterday evening but they do not include the other work that was included today.
Appears to be going twords consensus on this section
Kavouss Question raised on where the text orginated from - the new bylaws or from where? In particular kin the fourth column and should not deviate from the bylaws.
Greg - Response as a general matter this in interpretative guidance and need t move beyond the actual guidance of the text to a context of a framework
that is value neutral in approaching the topic.
Question - Tatiana Tropina: No, I just wanted to ask - Kavouss do you want to replace "consider" wth "respect"? I don't have a problem with this. I think we can do so.
This is the product of the drafting team and their consideration of the materials and their thoughts.
Comments from Kavouss Arasteh: Greg I do not agree with your argument that we interpret "Respect" meaning " consider"
Response Tatiana Tropina: Kavouss, we will analyze your comment. I made a note in the document.
The drafting team will consider alternatives when continuing its work on the draft and will look to try an be clear with regarding to what ICANN is doing.
b.‘within the scope of other Core Values’
Greg introduced the core value section, this is where we get to the point of human rights as a core value, and it needs to be applied through interpretive rules with
all the core values and commitments. its still a work in progress. Do have balancing test requirement here and that they is no hierarchy among the core values.
Important that the text be clear.
Jorge comment - text agreed to by the drafting team more or less - however will benefit from overview by ICANN Legal on core values and the balancing text but
on the question between commitment and core values in the Mission part of the bylaws. Relationship shold be consistent between core values and committement. No
document that explains the approach to managing core values and commitments.
Comments Tatiana Tropina: agree with Greg and the balancing issue wiht the core values
Jorge - Noted question to be asked of ICANN Legal - will provide in chat
Jorge Cancio (GAC Switzerland): question for ICANN Legal: what is their approach on the relationship between commitments and core values in general; and the HR core
value and commitments in particular.
Question - avri doria: is Jorge question a Legal staff question or a Board question?
Support to ask this question to ICANN Legal
ACTION ITEM for Staff to ask this question of ICANN Legal
It was noted - Kavouss Arasteh: What does worry me is that we modify the Bylaws through this interpretation where as we need to maintain the Bylaw
and provide clarification and further exploring the initial text
Note more work may be required on balancing test
c.‘respecting’
Tatiana - comment on red n=highlight in the document, text and thoughts are quire long and still disagreement in the drafting team on the draft text. If considered negative obligations and ICANN would not have any actions to take to respect human rights, is positive obligations in policy and decision making processes includes core values intended to guide ICANN in its decision making. It was proposed that the text cold be combined to contain both positive and negative approaches.
It was noted - Brett Schaefer: Tatiana, the bylaw says that HR creates no obligation. Why are we discussing positive and negative obligations?
Jorge - comments, as you can see still disagreement within the drafting group and the way the ideas are expressed. Agreement in the notion that respecting Human
Rights has both positive and negative sides. Respecting in positive light provides It was noted that th Ruggie Principles are relevant to the framework of interpretation
as there are lots of places where these principles have been supported. Suggestions on text in the fourth column, happy to work with other members on text for this column
beyong the small group working on the drafting
Comments on the text provided - Kavouss Arasteh: Para. 1.2 viii has ben combined with para. 1.2 c and made a mixture of up - not interpretation
Greg - comment - lost of discussion in the chat this is why its important to figure out what is meant by applicable law. This is a key to the bylaw the way its is drafted.
Hope to avoid loop holes or fuzzy language.
Neils - Point raised regarding Ruggie and why expliced denouncement of Ruggie is noted.
Jorge Cancio (GAC Switzerland): Well I do not agree with "denouncing" the UNGP... as may be clear by now...
Kavouss Arasteh: some people were categorically against use of Ruggy principles'''
Greg - not a compliance test
Neils - need to understand why its noted that Ruggie is applicable of not, could use it to address respect
Tatiana Tropina noted that many voices to consider when applying Ruggie and the groups needs to look at alternaive approaches, specificaly with respect
Neils need to consider different places to obtain definitations of respect
Brettt - confused by discssin on obligations that are broader than what has been layed out by th Mission and applicable law
d. ‘internationally recognized human rights’
Drafting team overview of the section -Tatiana related to the ICANN core vlaue and instruments create obligations for states scope of national law can be very broad. This should not be read in isolisation and should be read with applicable law. Depending on the jurisdiction in which ICANN operates may impact the applicable Human Rights that are applied
Noted - Kavouss Arasteh: if everybody is in favour of saying international convention (s) have been drafted for obligatory application for states and thus do not address ICANN concerns, just plainly and clearly say that and put it to public comment and see reactionsa
e. ‘as required by applicable law’
f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission’
g. ‘or beyond obligations found in applicable law’
h. ‘or the human rights obligations of other parties, against other parties’
3. AOB
Action Items
- ACTION ITEM for Staff to ask this question of ICANN Legal
Documents Presented
Chat Transcript
Brenda Brewer:Good day all and welcome to Human Rights Subgroup Meeting #11 on 25 October @ 19:00 UTC!
Kavouss Arasteh:Good Day Deal Brenda,
Kavouss Arasteh:What we can do without you, You are omni present which is highly apprecioated
Brenda Brewer:Hello Kavouss! We meet again!
Brenda Brewer:Thank you!
Kavouss Arasteh:Do you come to Hyderabad?
Brenda Brewer:I do! I look forward to seeing you there.
Kavouss Arasteh:Happy to hear that
Niels ten Oever:Hello all
Niels ten Oever:Hi Brenda, could it be the mic selection option is not yet enabled?
Tatiana Tropina:Hello all
Tatiana Tropina:that very evening when I decide to join early because I always have problems with the phone bridge... everything works perfectly!
Brenda Brewer:Hello Niels, should be working now.
Kavouss Arasteh:Dear Brebnda I am waiting to be called
Niels ten Oever:Thanks Brenda!
Tatiana Tropina:Niels, a short agenda question - since there have been changes in the document, will we start again from the beginning (mission?)
Niels ten Oever:That's what I'd propose, but I am of course open for suggestions :)
Brenda Brewer:Kavouss, calling you now.
Tatiana Tropina:I would support this proposal. Last time the document was not very read-friendly because of the long bylaws quotes, this time it's better
Niels ten Oever:Agree!
Kavouss Arasteh:connected
Kavouss Arasteh:Pls kindly consider my suggestion made at last meeting i.e. whenever we quote a text from Bylaws in second column, in third column ,if there is no comment to the quoted text we should indicate no interpretation is required
David McAuley (RySG):Hi Brenda - I am 4154
Brenda Brewer:Thank you David!
Tatiana Tropina:I can start
Jorge Cancio (GAC Switzerland):Hi I'm once again the swiss number
Nigel Roberts:Good evening
Tatiana Tropina:Go on Greg!
Tatiana Tropina::)
Tatiana Tropina:I can take over after Core Value
Tatiana Tropina:You better to cover core value since it's most of your suggestions
Cheryl Langdon-Orr 2:still on my other call as well... but I am using my mobile phone to join the AC in the interim
Jorge Cancio (GAC Switzerland):the doc on screen is not the last one - it does not include my comments and contributions of today
Kavouss Arasteh:Busy and important person , Cheryl
Brett Schaefer:I don't see anything on the screen.
Kavouss Arasteh:So do I
Tatiana Tropina:strange, I see everything
Cheryl Langdon-Orr 2:just good at multi tasking I suspect but yes busy
Tatiana Tropina:this is the link to the document in Google docs
Kavouss Arasteh:I SEE NOTHING tALTIANA
Niels ten Oever:Dear Jorge, this was the doc as of 12 hours ago. Recent version is on the google doc. But I wanted to send the doc 12 hours in advance.
Kavouss Arasteh:Sorry for CAP
Tatiana Tropina:Sorry to hear this Kavouss, I hope this will be fixed
Kavouss Arasteh:dEAR CHAIR, i DO NOT SEE FOURTH COLUMN
Niels ten Oever:It is there Kavouss, sorry you don't see it.
Kavouss Arasteh:Now coming
Brenda Brewer:Uploading most recent edits
David McAuley (RySG):please mute if not speaking
Greg Shatan:417 number
Cheryl Langdon-Orr 2:bad echo
Kavouss Arasteh:Niels, may we comment on fourth column?
David McAuley (RySG):i think comments are in there below
Tatiana Tropina:comments are in.
Greg Shatan:Can we have scroll control.
Brenda Brewer:I will open scroll control
Tatiana Tropina:No, I just wanted to ask - Kavouss do you want to replace "consider" wth "respect"? I don't have a problem with this. I think we can do so.
Anne Aikman-Scalese:Could we say "fully consider and balance with other Core Values"?
David McAuley (RySG):the echo is really bad
Niels ten Oever:can ppl who do not speak please mute their mic?
Cheryl Langdon-Orr 2:that works for me Anne
Greg Shatan:Anne, we get to the balancing issue a bit later in this document.
Greg Shatan:"consider" is not intended to imply any action.
Greg Shatan:or lack of action....
Kavouss Arasteh:Grec, I do not agree with your argument that we interprete "Respect" meaning " consider"
Greg Shatan:That was not my argument.
Tatiana Tropina:Kavouss, we will analyse your comment. I made a note in the document.
Tatiana Tropina:I wll seek to discuss it in the group. We take all the comments into account.
Tatiana Tropina:Yes, I agree with Greg - it wasn't meant so and Greg never said this :)
Kavouss Arasteh:Iam sorry if I misquote you dear Grec
Tatiana Tropina:I suggest for the sake of the agenda that Greg will continue with core value once we move there.
David McAuley (RySG):Good points Greg
Cheryl Langdon-Orr 2:agree
Tatiana Tropina:This is why we will consider the comment of Kavouss - this will make document more precise when everyone can understand it clearly.
Tatiana Tropina:Thanks Greg.
David McAuley (RySG):I thought the commitments vs core values discussions was pretty well done
David McAuley (RySG):discussion, that is
Chris LaHatte:I am just quickly logging in to apologise but I have family commitments and cannot participate today
Nigel Roberts:As last week, I need to leave at half-past the hour. Apologies.
Kavouss Arasteh:Niels ,I asked before others o problem to give the lfloor to Tidgani
Jorge Cancio (GAC Switzerland):question for ICANN Legal: what is their approach on the relationship between commitments and core values in general; and the HR core value and commitments in particular.
Greg Shatan 2:Agree with Jorge. We should not workin a vacuum..
Tatiana Tropina:I think this is a misundertanding
Tatiana Tropina:this is the last para on mission not on core values
Tatiana Tropina:May be using the scroll control will help. Because the last para on core values has nothing to do with mission
Tatiana Tropina:Yes agree Greg. But if anyone will find something in the mission we will take this into account
Kavouss Arasteh:Pls check the text of Mission and core value before interpreting anything
avri doria:is Jorge question a Legal staff question or a Board question?
David McAuley (RySG):I think it would be good to get ICANN legal input in this area
avri doria:should it be
avri doria:ok, it just seems more a
Tatiana Tropina:I support the idea of ICANN legal input
Erich Schweighofer:It is good to know what ICANN Legal has learnt so far but I do not expect that much.
avri doria:board type of answer.
Jorge Cancio (GAC Switzerland):@Avri: Board opinions are always important. But this is more intended as a legal question
avri doria:but i am ok with ansking anyone anything
Greg Shatan 2:ICANN legal has probably not provided any guidance on the HR Core Value, but if we ask, we'll know for sure.
Niels ten Oever:OK - then let's ask this question to ICANN legal. Staff, could you pick this up? Thanks in advance.
Greg Shatan 2:We should also ask for ICANN legal's view on interpreting the core values.
Tatiana Tropina:Yes and balancing test.
Tatiana Tropina:!!!
Kavouss Arasteh:What does worry me is that we modify the Bylaws through this interpretation where as we need to maintain the Bylaw and provide clarification and further exploring the initial textz
avri doria:I expect an answr of the sort of it depends on the case, but we interpret based on Board guidance.
Brett Schaefer:Tatiana, the bylaw says that HR creates no obligation. Why are we discussing positive and negative obligations?
Niels ten Oever:Ending contracts is not a necessity outlined in Ruggie.
Niels ten Oever:Why do we mention Ruggie here?
avri doria:i hate the amount of Ruggie basking we do.
avri doria:... bashing ...
Greg Shatan 2:The bylaw says that it does not create any obligation on ICANN outisde its mission beyond obligations found in applicable law.
avri doria:so the problem is that CA does not have any applicable law?
Tatiana Tropina:Greg, thanks!
Anne Aikman-Scalese:Both the U.S. federal and CA laws which are applicable DO have provisions which govern certain Human Rights.
Niels ten Oever:Arguably a negative commitment also need positive actions, right? Such a not getting a head injury might need wearing a helmet.
avri doria:yes like 1st ammendment rights of speech and assembly?
Mark Carvell UK GAC rep:I believe the Ruggie principles can apply also to entities like ICANN in addition to purely commercial business enterprises. The UN contacts can provide advice on this.
Tatiana Tropina:I did some of research on CA law (I am not a CA lawyer) but certainly there are some legislation on human rights
avri doria:so we need to use the US Bill of rights as our touchstone?
Greg Shatan 2:I was about to agree with the remark on "Ruggie basking" but it turned out to be a typo.
Niels ten Oever:I though that the Ruggie Principles could also be used for implementation, so not sure why this is brought up here to explicitly NOT use it.
Markus Kummer:The US subscribed to the OECD guidelines which explicitly endorse the UNGP!
Tatiana Tropina:Markus, this is a wonderful move of the US, but I don't believe it has a lot to do with ICANN HR bylaw.
Anne Aikman-Scalese:@Avri - yes and the EEOC regulations re reasonable accommodation which seek to balance these rights in light of the requirements of running a business. So it is not strictly the Bill of Rights alone - but I agree that there is applicable U.S. and CA law that involves respect of Human Rights.
avri doria:But we are claiming not to be a business.
Kavouss Arasteh:Para. 1.2 viii has ben combined with para. 1.2 c and made a mixture of bothmixed u
avri doria:that is why Ruggies is being excluded as useful.
Mark Carvell UK GAC rep:Agree the Ruggie principles and guidance are a "gold standard" - ICANN should investigate this at least - strange for a global multi-stakeholder entity like ICANN not to.
Anne Aikman-Scalese:uggie says "in all its business relationships" even as to non-profits.
Tatiana Tropina:I am not sure I understood the comment...
avri doria:did he say minestrone?
Jorge Cancio (GAC Switzerland):old hand
David McAuley (RySG):That is what I heard as well
Anne Aikman-Scalese:I like Gazpacho!
Tatiana Tropina:Borscht is better (but I am Russian!)
Jorge Cancio (GAC Switzerland):+1 Anne
Markus Kummer:The OECD refrained from definintg what a MNE is -- do the guidelines apply to ICANN or not?
avri doria:yes, if we are going to rely on applcable law, we need to know whhat is in it or whether it is a null set.
Jorge Cancio (GAC Switzerland):and Borscht is also cool
Mark Carvell UK GAC rep:"Life is a Ministrone" - 10cc (not country code).
David McAuley (RySG):I second Greg's point about applicable law concept being key -
Tatiana Tropina:Are we now at the applicable law?????
avri doria:both Borst and Gazpacho have only one vegable/fri=uit. Minestrong is multivegetable
David McAuley (RySG):I don't think so Tatiana
Tatiana Tropina:I am sorry I thought we are on "respect" part
Tatiana Tropina:Thanks David. I thought I might have gone mad :)
avri doria:do wee define respect up front so we can use the word.
David McAuley (RySG):I think we are still at respect, mixed in with a culinary class
Anne Aikman-Scalese:IT's lunchtime here - wish I had a can of Minestrone in my desk.
avri doria:i was ging to avoid talking about Ruggie until the explict denunciation was uttered.
Tatiana Tropina:I have minestrone in my fridge waiting for the end of the call :)
Cheryl Langdon-Orr (CLO):Making me hungry (breakfast time for me)
Brett Schaefer:We seem to be going in circles again.
Kavouss Arasteh:Niels, this is not intzerpretation but mixture of two pèars, that I referred to
Jorge Cancio (GAC Switzerland):Well I do not agree with "denouncing" the UNGP... as may be clear by now...
Kavouss Arasteh:parsa.
Tatiana Tropina:I can do this
Tatiana Tropina:continue Greg
avri doria:I agre Jorge
Kavouss Arasteh:some people were categorically against use of Ruggy principles'''
avri doria:You are saying they are categorically against usins a UN document for guidance?
Brett Schaefer:Is is agreed by everyone that the mention in the first colum in reference to UNGPs to addressing adverse HR impacts and seeking to prevent or mitigate adverse HR impacts are crosswise with the bylaw text: This Core Value does not obligate ICANN to enforceits human rights obligations, or the human rights obligations of other parties, against other parties.
Kavouss Arasteh:It seems from the argument that I am hreearing
Jorge Cancio (GAC Switzerland):@Brett: that is a very partial reading of what is being discussed here, and what the UNGP mean, which are far from imposing anything
avri doria:alternatice is ok as long as it is not contrary.
David McAuley (RySG):I think Niels question was fair and Greg and Tatiana answers are as well
Brett Schaefer:@Jorge, how so? I'm confused about this entire discussion of obligations. Greg says only within Mission and applicable law. I'm trying to clarify that.
avri doria:but we do have to find a consensus point.
avri doria:is therre a difference between what respect means and what it implies?
avri doria:i have long been in dispair on this group.
Kavouss Arasteh:the member of the drafting group should be very careful and caucious as the entire community rely on CCWG. ccwg rely on sub group and sub group rely on rapporteur group
Jorge Cancio (GAC Switzerland):@Brett: I feel we all agree that this is a core value, not a commitment, and that the Mission is the boundary
Kavouss Arasteh:You will notice how the responsibilty is tranfforming
Cheryl Langdon-Orr (CLO):I agree Brett
Greg Shatan 2::-)
Tatiana Tropina:Greg can you start?
Tatiana Tropina:I can do this
avri doria:First we exclude the glue UPGP that indicates how the UDHR applies to non govts/ and then we say they dont apply. seems problematic to me.
Kavouss Arasteh:if everybody is in favour of saying international convention (s) have been drafted for obligatory application for states and thus do not address ICANN concerns, just plainly and clearly say that and put it to public comment and see reactionsa
David McAuley (RySG):Yes, many thanks to drafting team
Anne Aikman-Scalese:Thank you to the drafting team and to Niels!
Tatiana Tropina:thanks a lot to everyone for your comments!
Cheryl Langdon-Orr (CLO):safe travels
David McAuley (RySG):Thanks Niels, staff and all, bye
Tatiana Tropina:I will see you remotely in Hyderabad
Cheryl Langdon-Orr (CLO):bye for now
Niels ten Oever:Bye all
Tatiana Tropina:thanks and bye!
Niels ten Oever:and thanks stafff
