Sub-group Members: Anne Aikman-Scalese, Anne Rachel Inne (Ari), Beth Bacon, Brett Schaefer, Cheryl Langdon-Orr, Cláudio Lucena, Corinne Cath, Daniel Appelman, David McAuley, Ergys Ramaj, Erich Schweighofer, Greg Shatan, Griffin Barnett, Harold Arcos, Irene Borissova, John Laprise, Jorge Cancio, Kavouss Arasteh, Lousewies van der Laan, Markus Kummer, Matthew Shears, Nathalie Coupet, Niels ten Oever, Pär Brumark, Ron da Silva, Shreedeep Rayamajhi, Stefania Milan, Tatiana Tropina, Taylor RW Bentley, Vicky Sheckler. (30)
Staff: Berry Cobb, Bernard Turcotte, Brenda Brewer, Elizabeth Andrews, Yvette Guigneaux. (5)
Apologies: Paul McGrady, Nigel Roberts, Rudi Daniel
** If your name is missing from attendance or apology, please send note to acct-staff@icann.org **
Transcript
- Word Doc
Recording
The Adobe Connect recording is available here: https://participate.icann.org/p7tsxzsx7eh/
The audio recording is available here:
Agenda
1. Administrivia Roll call, absentees, SoIs, etc
2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 19, 17, 18
3. AOB
Notes
Documents Presented
Chat Transcript
Yvette Guigneaux: Welcome to the WS2 Human Rights Subgroup Meeting #8 | 19: 00 UTC |Tuesday, 04 October 16!
Tatiana Tropina: Hi everyone : )
David McAuley (RySG): Hi Brenda, I am 4154
David McAuley (RySG): Hello Yvette, tatiana, all
David McAuley (RySG): Tatiana that is
Brenda Brewer: Thank you David!
Tatiana Tropina: David, no problem, I frequently do this : ) (names in lower cases) and press send : )
Yvette Guigneaux: Hello David & all
Niels ten Oever: Hi all
Niels ten Oever: The new room / URL took a bit of adjusting from me, sorry about that
Tatiana Tropina: Hi Niels
Kavouss Arasteh 2: Hi Everybody
Bernard Turcotte Staff Support: hello all
jorge cancio (GAC Switzerland): hy there
Cláudio Lucena: Hello everyone
David McAuley (RySG): I see Markus in adobe at bottom there
Brenda Brewer: @David, that is Markus' audio only.
David McAuley (RySG): Good point Tatiana - I think we need a separate FoI that stands alone as we accept language (none so far so far as I know)
David McAuley (RySG): thanks brenda
Tatiana Tropina: Thanks Niels. So we are going to discuss problematic later? Super. So that was my understanding. : ) Thanks!
Brett Schaefer: Again we seem to be starting from the assumption that the RUggie Principles are our base document and we are trimming from them. Why?
Tatiana Tropina: Brett, not. At least this is NOT my assumption.
Cheryl Langdon-Orr (CLO): good question Brett
Tatiana Tropina: But there is a divergence in the views of this group. I will fight against the assumption that Ruggie is our base document
Brett Schaefer: I also remian concern that the draft FoI seems to assume that ICANN can voluntarily adopt HR obligations even though that seems in opposition to the Core Value text.
Kavouss Arasteh 2: what draft?
Brett Schaefer: Circulated by Niels earlier today in e-mail.
Greg Shatan: That is not my assumption either, nor do I think it is useful to act as if it were.
Cheryl Langdon-Orr (CLO): AGree with you Tatiana, but would be happy to hear from Ruggie on a call so we might get a custom taylored view rather thsn our own edits and understandings
Tatiana Tropina: I won't also assume that the content of the FoI document is actually FoI. It's good structure-wise but content-wise it makes the assumptions that I will fight against.
Greg Shatan: Brett, whether or not ICANN can adopt voluntary obligations is beyond the scope of interpreting the Bylaw.
Brett Schaefer: @Greg, if so, then teh FoI is out of scope.
Tatiana Tropina: Niels, but this is not reflecting the discussions we had!
Anne Aikman-Scalese: Agree wtih
Anne Aikman-Scalese: Agree wtih Tatiana
Greg Shatan: Agree with Tatiana, any FoI should build on our discussions. This doesn't
Greg Shatan: Brett, this is very consistent with my concern.
Tatiana Tropina: Greg, the document is good structure wise though. So I don't want to look like I am trushing the work of others.
Tatiana Tropina: David, I agreed with you already in the comments in the doc. This will solve the problem.
Tatiana Tropina: thanks for the suggestion.
David McAuley (RySG): Thank you Niels
Cheryl Langdon-Orr (CLO): Good point David perhaps just start with a Outline frame for the FOI discussions to come
Tatiana Tropina: because the outline is good.
Cheryl Langdon-Orr (CLO): Yes Tatiana the skeleton / structure is fine
matthew shears: yes, use outline but leave Ruggie for later
David McAuley (RySG): I am one of those who think "applicable law" is an important part of the bylaw we are interpreting
matthew shears: an entity respects human righgts through complying with applicable law
Tatiana Tropina: David, yes.
David McAuley (RySG): One critical question we should ask about all undertakings suggested in this document is this: Are they “required by applicable law?” If not, then we should recall the following words that are a part of Bylaw Article 1.2(b)(viii): “This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN … beyond obligations found in applicable law.”
Cheryl Langdon-Orr (CLO): indeed David
David McAuley (RySG): That is why I believe any incorporation of any Ruggie Principle must be subject to an overarching statement that its impact will be subordinate to the “required by applicable law” filter.
matthew shears: david: an entity respects human righgts through complying with applicable law
David McAuley (RySG): I appreciate Niels effort to get Prof Ruggie to come to a call
David McAuley (RySG): agree Matthew
Stefania Milan: Hello everyone, apologies for being late
Niels ten Oever: I have reached out to the working group in line with the recommendation, but they have not responded.
Greg Shatan: David, I think that filter would eliminate much of the Ruggie Principles in the context of ICANN.
Tatiana Tropina: Non-binding can still open the door for claims and court cases once ICANN commits to them
Tatiana Tropina: Greg, +1
Kavouss Arasteh 2: Yes, those principles are recommendations thus non binding but any non binding legally are morally binding
Niels ten Oever: @Tatiana, could you give an example of that? Would be great to have that in the concerns document
David McAuley (RySG): I tend to agree @Greg
Tatiana Tropina: Niels, I think Paul Twomey gave some examples, especially with ccTLDs.
Tatiana Tropina: but no worries, till the next call I will try to coordinate with Paul and come up with concrete examples.
Niels ten Oever: Thanks!
matthew shears: perhaps before doing further reach out on Ruggie we can go back and look at the bylaw
matthew shears: + 1 Greg
Vicky Sheckler: +1 greg
Brenda Brewer: Please mute your phone line when not speaking! *6 (star 6). Thank you!
Erich Schweighofer: +1 Greg
Tatiana Tropina: +111 Greg
Anne Aikman-Scalese: I think NIels has already acknowledged the edits were premature. Thank you Niels for recognizing this.
David McAuley (RySG): +1 Brenda, please mute if not speaking
jorge cancio (GAC Switzerland): we could have a second "descriptive" column and a third column with our different analysis of the facts
jorge cancio (GAC Switzerland): hopefully with a view of converging
matthew shears: perhaps we need to agree what should be in the FoI?
Brenda Brewer: phone line 415-xxx-9626 is putting static into call. Please mute. Thank you!
Kavouss Arasteh 2: People continue to discuss general issue without any concrete suggestions
jorge cancio (GAC Switzerland): @matthew: I think the FoI has to give meaning to the concepts found in the Bylaw HR core value, i.e. the first column in NIels' draft
matthew shears: jorge - indeed then lets proceeed on that basis
Greg Shatan: I don
Greg Shatan: I think this is our job, not Jurisdiction. We can
Greg Shatan: not hand it off.
Erich Schweighofer: Applicable law changes, not the term.
Tatiana Tropina: I agree with David...
jorge cancio (GAC Switzerland): on "applicable law": why don't we start with an interpretation from ICANN legal? what it means to them?
David McAuley (RySG): I will take a stab at it, Jorge, but if ICANN legal would do that then in my view that would be preferable
matthew shears: I understand applicable law is the law that ICANN has to comply with in the jurisdicitons in which it operates - and in terms of what we are concrned about laws that may or may not have spefici or generic human rights opbligations
Anne Aikman-Scalese: Karen forwarded a letter written in 2015 that discussed "applicable law" and summarized U.S. civil rights law. The letter said that even after expiration of the IANA contract, many of these civil rights law still apply.
David McAuley (RySG): One problem we face, IMO, is the language used in these principles is not directly applicable to ICANN
Harold Arcos: my apologies, I will keep only connected through cellphone
Kavouss Arasteh 2: Tatiana, we are not discussing due Diligent under principle 19
matthew shears: this is implementaiton - something our FoI could point to as possible next steps, perhaps
David McAuley (RySG): Agree w Tatiana - mitigate sounds like enforcement
Niels ten Oever: In previous calls we mentioned mitigated as a synonym to 'address'
matthew shears: mitigate is to lessen which requires an action to do so
matthew shears: the prevention and mitigation comes as a result of the impact assesments
Niels ten Oever: How would mitigate not be part of respect?
Tatiana Tropina: Due dilligence comes from other principles which do require due dilligence
David McAuley (RySG): Tatiana's concern is legit, IMO, as the principle is broad and capable of wide interpretation but the bylaw is quite narrow
Anne Aikman-Scalese: I just forwarded the "applicable law" letter from ICANN Legal to the list again. It is only a starting point and you have to skip the part about the obligations ICANN had as a US federal contractor and go to the last page.
Tatiana Tropina: I just want to say that this principle has to be read together with others. It's not a standing alone principle.
David McAuley (RySG): Mitigate would be acceptable as long as required by applicable law
Tatiana Tropina: And if Ruggie require a broad impact assessment ... this is a broad thing.
Tatiana Tropina: David, yes, as well as protect and enforce
matthew shears: @ David - even then it could be outside the scope of the bylaw
Tatiana Tropina: And yes, it is the issue of implementation
Kavouss Arasteh 2: Any time and evry time we discuss an issue somebody says the issue is of implementation nature.
Kavouss Arasteh 2: How we could draw a line between policy principles and implementation principles
Anne Aikman-Scalese: I note that ICANN has not yet made policy has to HR. This is a high level By-Law. Policy will be made in accordance with the existing ICANN processes - including Policy Development.
Cheryl Langdon-Orr (CLO): I am in line with your thinking Greg / Jorge
Bernard Turcotte Staff Support: Timing reminder - 15 minutes to the top of the hour
Greg Shatan: If we are talking about what ICANN is free to do, and not what it
Greg Shatan: is committed to do we are no longer interpreting a bylaw.
matthew shears: could we move on to the other princples in the agenda so that we move on from Ruggie for the next call?
David McAuley (RySG): on mute?
Tatiana Tropina: Matt : )))) move on from Ruggie in 13 min? you are such an optimist.
Greg Shatan: Same comment as 19. This is out of scope for this group.
Tatiana Tropina: Oh uh now it comes to the wonderful DD.
Erich Schweighofer: Agree with Greg.
Tatiana Tropina: +1 Greg
matthew shears: due diligence for ruggie = the process described in 17
Tatiana Tropina: Yes, we do put them in doubt. Because we have the reasons to do so.
matthew shears: + 1 David
Tatiana Tropina: David, thanks a lot. Can't agree more.
Greg Shatan: Also, Ruggie is intended to be a full set of guidelines for entities policies and actions. Our job is much more limited than that.
Anne Aikman-Scalese: ICANN will be undertaking policy-making activities with reference to the FOI-HR. Implementation will occur after policy is adopted - in accordance with existing ICANN processes. Agree that human rights impact assessment is implementation. Not sure as to whether conducting due diligence is policy or implementation. It is quite certain that if it affects registry contract obligations, it is policy.
Greg Shatan: I think we are being sloppy in using the term "policy" as if it is interchangeable with interpretation.
Cheryl Langdon-Orr (CLO): Yes I thought that was what we are doing Niels
Anne Aikman-Scalese: Agree with Greg - we are not supposed to be making policy, but developing an FOI for those who will be making policy.
Cheryl Langdon-Orr (CLO): absolutly Anne
Greg Shatan: Implementing the Bylaw will require policy work, not just "implementation."
matthew shears: I a way Niels this has been a useful exercise for me becuase at the outset it was unclear to me whether Ruggie was in scope and suitable - but now having gone through this I am convinced that they are largely not, and certainly not as a starting point for our limited work on the FoI
Brett Schaefer: +1 Matthew
Cheryl Langdon-Orr (CLO): yup
Niels ten Oever: I think our opinions our converging indeed
Niels ten Oever: So now we need to see what we can derive and what we are missing.
Tatiana Tropina: Yes, Matt. Having gone through them I am not convinced to change my position that Ruggie shall be out unless we decide something is in
Anne Aikman-Scalese: As previously expressed, I favor some version of Principle 18 being added to the FOI- HR. I believe this is consistent with current ICANN processes.
David McAuley (RySG): lost Jorge?
Bernard Turcotte Staff Support: no sound
Greg Shatan: I think 18 is out of scope for interpreting the bylaw.
Anne Aikman-Scalese: ha ha Niels - funny! ;-)
Bernard Turcotte Staff Support: 3 minutes left
Brett Schaefer: Yes, consensus seems to be that Ruggie is not a sound basis for the FoI. We should reconsider our approach.
Niels ten Oever: I think that is not what people said Brett, parts of Ruggie are useful, not wholly applicable.
jorge cancio (GAC Switzerland) 2: +1 Niels
Brett Schaefer: Really, I thought people supported Matthew who said: I a way Niels this has been a useful exercise for me becuase at the outset it was unclear to me whether Ruggie was in scope and suitable - but now having gone through this I am convinced that they are largely not, and certainly not as a starting point for our limited work on the FoI.
Anne Aikman-Scalese: I would favor saying that in developing policy, the policy-makers would use 18 a and b when they refer to FOI-HR
jorge cancio (GAC Switzerland) 2: UNGP 18 is important in implementation, so to say a first step, and would help to identify the HR most relevant to ICANN, without cherry-picking...
Anne Aikman-Scalese: Sorry I have to go. THank you! Anne
Cheryl Langdon-Orr (CLO): I was thinking we have been 'inspired' by the RP's and that this exercise was well worthwhile
Greg Shatan: I believe I should put my time behind my mouth....
Cheryl Langdon-Orr (CLO): Thanks everyone Good progress IMO
Cheryl Langdon-Orr (CLO): Talk again soon
matthew shears: thanks
Tatiana Tropina: thanks! bye all
jorge cancio (GAC Switzerland) 2: thanks and bye!
Bernard Turcotte Staff Support: bye all
David McAuley (RySG): Thanks Niels, staff, all