Human Rights Meeting #12 (15 November @ 19:00 UTC)
- Yvette Guigneaux
Sub-group Members: Andreea Brambilla, Andrew Mack, Anne-Rachel Inne, Avri Doria, Cheryl Langdon-Orr, Chris LaHatte, Daniel Appelman, David McAuley, Erich Schweighofer, Greg Shatan, Griffin Barnett, John Laprise, Jorge Cancio, Kavouss Arasteh, Lousewies van der Laan, Markus Kummer, Niels ten Oever, Robin Gross, Ron Da Silva, Rudi Daniel, Stefania Milan, Wafa Dahmani. (22)
Observers/Guests: Irene Borissova
Staff: Karen Mulberry, Nathalie Vergnolle, Yvette Guigneaux
Apologies: Anne Aikman-Scalese, Matthew Shears, Tatiana Tropina, Paul McGrady
** 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. 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 create, any obligation on ICANN outside its Mission or beyond obligations found in applicable law’
g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’
3. AOB
Notes
1. Administrivia
- Apologies: Anne Aikman-Scalese, Matthew Shears, Tatiana Tropina
- Roll call will be taken from AC room.
- No audio only participants.
- 3 open questions to ICANN legal.
ACTION (Staff): follow-up with ICANN Legal
- Karen: Answers will be provided next week.
- Cheryl Langdon-Orr (CLO): small update to SOI mine is yet to reflect my new role as ALAC Liaison to the GNSO Council update later today
- David McAuley: I think I will need to update my SOI as well as I am taking over as Rapporteur of IRP IoT - not sure if that will require a new SOI but should mention it here just in case
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’
- "core value" should be capitalized
- David McAuley: My comment - this section appears fine
- No other comments from the group on this section.
b.‘within the scope of other Core Values’
- Discussed the balancing process:
- avri doria: In this balancing can a core value be violated?
- The FoI says: "The result of a balancing-test cannot cause ICANN to violate any Commitment, as Commitments are binding."
- David McAuley: where one core value is honored another might be partially honored or not honored in a balancing test it seems.
- Chris LaHatte: the usual test for breaches of human rights is one of proportionality.
- Jorge Cancio (GAC Switzerland): Normally in a balancing test you need to address each and every factor (here each core value) and motivate how this is done and with what result.
- John Laprise: So, on a given decision/issue. could the community demand of ICANN an explanation of how a particular core value was weighed/applied/respected?
- Pending response from ICANN legal on how the balancing works
- Jorge Cancio (GAC Switzerland): Let's also wait for ICANN Legal and their take on how commitments and core values are meant to work together
- Might require additional text, after responses are received from Legal ICANN.
- Suggestion to change "cannot" into "may not" / ""should not" / "shall not" / "must not" . "Must not" is retained, to be further discussed on the list if necessary.
- Suggestion to add references next to quotations.
c.‘respecting’
- No comments from the group.
d. ‘internationally recognized human rights’
- No comments from the group.
e. ‘as required by applicable law’
- Daniel Appelman: When read with the "respecting" explanation, this implies that ICANN has no obligation to respect human rights except where national laws directly place ICANN under those obligations.
- avri doria: David does that not make this meaningless? or rather it just says forget about HR, just obey the law?
- Jorge Cancio (GAC Switzerland): I had similar concerns to those expressed by Avri. But I feel the Core Value not only restricts ICANN to avoid violating HR. It also brings with it a positive element to be guided by internationally recognised human rights in its actions
- Greg Shatan: The point is to abide by the laws but still respect Human Rights.
- Daniel Appelman: ICANN respecting human rights "as required by applicable law" makes little sense when the next section says that mostly only States are required to respect human rights.
- avri doria: if there is no law protecting a hr, do we still need to care about the hr.
- David McAuley: it's not a matter of not caring, but a matter of observing the law
- Erich Schweighofer: ICANN's policies should respect human rights ... but implementation may conflict with applicable law. Sad but reality, contradictions have to be solved by HR institutions.
- Jorge: other areas of the FoI cover the obligation of ICANN to respect HR.
- Markus: suggestion to refer to the OECD guidelines.
f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission or beyond obligations found in applicable law’
- not discussed
g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’
- not discussed
3. AOB
- WIll continue this reading on the list and next week.
Action Items
ACTION (Staff): follow-up with ICANN Legal - Karen: Answers will be provided next week.
Documents Presented
Chat Transcript
Yvette Guigneaux: Welcome to the Human Rights Subgroup Meeting | Tuesday, 15 November @ 19:00 UTC!
KAVOUSS.ARASTEH: dEAR yEVETTE
Niels ten Oever: I also received apologies from Tatiana Tropina, she is very sorry she couldn't make it
Yvette Guigneaux: Hello Kavouss, just dialed ou in now
KAVOUSS.ARASTEH: 19,00 UTC OR 20,00 utc
KAVOUSS.ARASTEH: I saw on the message 20,00utc
Cheryl Langdon-Orr (CLO): hi everyone
Niels ten Oever: it's 19: 00 UTC Kavous, happy you're here with us!
David McAuley: Hi Karen,
David McAuley: I am 4154
Yvette Guigneaux: copy that David, thank you
David McAuley: Thank you Yvette
Cheryl Langdon-Orr (CLO): : -)
John Laprise: : )
Cheryl Langdon-Orr (CLO): small update to SOI mine is yet to reflect my new role as ALAC Liaison to the GNSO Council update later today
Karen Mulberry: I will have the responses from ICANN Legal next week
Karen Mulberry: I will follow up and send the three questions to thr WS2 Legal Committee as well
David McAuley: I think I will need to update my SOI as well as I am taking over as Rapporteur of IRP IoT - not sure if that will require a new SOI but should mention it here just in case
Jorge Cancio (GAC Switzerland): Hi there - my connection is awful... so I'll defer to Greg and Niels
Yvette Guigneaux: Sync is now available if needed
David McAuley: the "clean" document is much appreciated
David McAuley: at least by me
John Laprise: +1
Cheryl Langdon-Orr (CLO): +!
KAVOUSS.ARASTEH: Grec
KAVOUSS.ARASTEH: from where you are readind
KAVOUSS.ARASTEH: reading
David McAuley: My comment - this section appears fine
John Laprise: page 2 of the doc
Jorge Cancio (GAC Switzerland): Hi I'm now also on the swiss number
David McAuley: please mute if not speaking
Greg Shatan: Someone is a loud French-speaking place.
Jorge Cancio (GAC Switzerland): not me : -)
Yvette Guigneaux: Markus, please mute your line - i've tried from this end but it is not working
Lousewies van der Laan: Shall I trans;ate ;-) ?
Greg Shatan: Dinner party?
Greg Shatan: Cocktails?
Wafa Dahmani: I think staff can mute him : )
Wafa Dahmani: a party ?
Yvette Guigneaux: thank you Markus, we muted on this end but it wasn't working, looks like we got it - thank you so much Markus
avri doria: In this balancing can a core value be violated?
Jorge Cancio (GAC Switzerland): they have to be respected too
KAVOUSS.ARASTEH: Is it interpreation or citation from Bylaws?
Jorge Cancio (GAC Switzerland): so they could not be violated in my view
Niels ten Oever: citation from Bylaw Section 1.2c
Daniel Appelman: Who decides what otherwise best serves ICANN's Mission?
avri doria: yeah my question s for when you are done wih the section.
Niels ten Oever: I thnk there is your answer Avri
John Laprise: So, on a given decision/issue. could the community demand of ICANN an explanation of how a particular core value was weighed/applied/respected?
Jorge Cancio (GAC Switzerland): that sound is frightening
Greg Shatan: The dirigible's going down, Captain!
Yvette Guigneaux: Avri - your line is distorted - willing to do a dial out
Yvette Guigneaux: just give me your phone#
avri doria: so you are sying a core value can be violated?
KAVOUSS.ARASTEH: question
avri doria: right so values whicha re not commitments can be violated.
David McAuley: hard to hear Kavouss
Andrew Mack: very faint
David McAuley: better
KAVOUSS.ARASTEH: should not
Jorge Cancio (GAC Switzerland): shall not?
KAVOUSS.ARASTEH: shall is too strong
David McAuley: "must not be permitted to"
John Laprise: agree on the strength
avri doria: shall not does not seem to strong.
Cheryl Langdon-Orr (CLO): Happy with Must not be permitted
avri doria: so balance can mean a vlaue is ignroed.
John Laprise: +1 greg & cheryl
KAVOUSS.ARASTEH: I have always this problem with American Speaking language
avri doria: so a value may be ignroed.
KAVOUSS.ARASTEH: MUST is ok
David McAuley: I'm ok with earlier too
avri doria: not just blanaced by ignroed
avri doria: not just blanace but ignroed.
Jorge Cancio (GAC Switzerland): as I said, the core values must be "respected"
avri doria: now i cant even hear.
KAVOUSS.ARASTEH: I have serious problem with the use of CAN
Yvette Guigneaux: Do you want a dial out Avri?
David McAuley: where one CV is honored another might be partially honored or not honored in a balancing test it seems
Yvette Guigneaux: Avri?
Yvette Guigneaux: Working on getting Avri back
Chris LaHatte: the usual test for breaches of human rights is one of proportionality
KAVOUSS.ARASTEH: i do not agree with the diplmatic tern "hourned"
Chris LaHatte: A balance is undertaken by the proportionality test
Jorge Cancio (GAC Switzerland): Normally in a balancing test you need to address each and every factor (here each core value) and motivate how this is done and with what result
avri doria: not honoring is not violating?
David McAuley: That was my thought Avri, and yest that is how I see it - the word "violate" to me is freighted with negative intent
Jorge Cancio (GAC Switzerland): Let's also wait for ICANN Legal and their take on how commitments and core values are meant to work together
David McAuley: I agree with Jorge - would be good to get ICANN legal views
avri doria: so if we a BUMP that villates human rights, that is ok?
avri doria: i do not know how one respects human rights while violating them.
avri doria: so our mission could be the cause of violating human rights?
avri doria: is this an ends justifying means situation?
KAVOUSS.ARASTEH: nio no
KAVOUSS.ARASTEH: NO no
avri doria: ( btw, sorry i forgot to bring my microhpone with me on this trip, so am trying to use the built in mike on the laptop, which is obviously not working)
Greg Shatan: I stepped off for a couple of minutes after I spoke. Did I miss anything of substance?
KAVOUSS.ARASTEH: Thren what we are talking about since last 7 mints
avri doria: i do not see how it is acceptable to violate human rights by ICANN for any reason.
Jorge Cancio (GAC Switzerland): thanks to Greg for taking up the intros to the sections!
KAVOUSS.ARASTEH: Ggreed
KAVOUSS.ARASTEH: agreed
David McAuley: +1 @Jorge
Jorge Cancio (GAC Switzerland): less is more
Greg Shatan: I think we need to consider this in terms of "proportionality" rather than (or in addition to) "violation."
Jorge Cancio (GAC Switzerland): not much to add
avri doria: maybe it is becasue it is 430 am, but i do not see how this clarifies the meaning of repsect.
Greg Shatan: A balancing test implies "proportionality."
David McAuley: I agree w/Greg and cannot imagine ICANN violating an HR as required by applicable law
avri doria: but can the proportion of one HR be 0?
avri doria: can the proportion of one value be 0?
Niels ten Oever: I think that cannot be proportional
Chris LaHatte: +1 Greg and Dave
Niels ten Oever: because it is not balanced if one is 1 and another is 0
KAVOUSS.ARASTEH: Niel, may we take piece by piece pls
avri doria: as i said, it is not clear to me. at least not yet.
Erich Schweighofer: Should we not refer to the accepted international legal recognition of these instruments, including reservations to these treaties?
Niels ten Oever: @Erich - this para aims to address that
Greg Shatan: The Core Value instruction is expressly situation specific. I think that "balancing" implies avoiding extreme (i.e., unbalanced) results.
Daniel Appelman: When read with the "respecting" explanation, this implies that ICANN has no obligation to respect human rights except where national laws directly place ICANN under those obligations.
avri doria: David does that not make this meaningless? or rather it just says forget about HR, just obey the law?
Daniel Appelman: That was my thought too.
Daniel Appelman: Would be nice for Niels and/or Greg to address this.
David McAuley 2: I got bounced out of adobe but listened over phone
David McAuley 2: sorry Avri - just seeing your question
KAVOUSS.ARASTEH: David , pls slowly not too fast
David McAuley 2: sorry Kavouss - will take that advice now
Yvette Guigneaux: hi David, are any of the phone numbers showing you?
avri doria: if there is no law protecting a hr, do we still need to care about the hr.
David McAuley 2: no - I was and remain at 4154 and I think you addressed that Yvette
Yvette Guigneaux: perfect, thanks David
Jorge Cancio (GAC Switzerland): I had similar concerns to those expressed by Avri. But I feel the Core Value not only restricts ICANN to avoid violating HR. It also brings with it a positive element to be guided by internationally recognised human rights in its actions
Daniel Appelman: ICANN respecting human rights "as required by applicable law" makes little sense when the next section says that mostly only States are required to respect human rights.
Yvette Guigneaux: We have phone numbers only showing - if you can see the chat, would you kindly identify for the record?
Daniel Appelman: Typing because I don't have a good voice connection. Sorry for that.
Niels ten Oever: @Daniel - that refers to the difference between protect and respect
Greg Shatan: Good point, Niels.
Erich Schweighofer: ICANN's policies should respect human rights ... but implementation may conflict with applicable law. Sad but reality, contradictions have to be solved by HR institutions.
Markus Kummer 2: I had my hand up after Greg but lost my connection in between. can I pleased be next...
avri doria: i guess i would have to respectfully disagree with David about ICANN & HR
avri doria: we do well on property but nt so well on human rights.
Greg Shatan: There's a larger concept at play here, which is that ICANN should respect existing legal rights but avoid creating new legal rights. This is not limited to the HR discussion, or even specific to it.
avri doria: right so if the hr is not codified, it does not count..
avri doria: you know i have more problems with AC than with other meeting tools. do not know why that is.
Daniel Appelman: As currently drafted, ICANN's obligation to respect human rights is subject both to "as required by applicable law" and the balancing process. The combined effect is to severely restrict when ICANN is required to respect human rights. Are both limitations really necessary?
avri doria: but the icann bylaws do not committ to those higher standards, do they?
avri doria: in fact they seem to almost prohibit it from doing so.
Jorge Cancio (GAC Switzerland): good points by Markus...
Chris LaHatte: @avri these are not like a statute but HR must be interpreted in the light of the actual issue, and the meaning. it cannot be an analysis of logic like an algorithm
KAVOUSS.ARASTEH: Let us NOT talk about SOFT or Hard law
avri doria: i am certainly not there yet.
avri doria: i still do not find any repsect for Hr beyond what is codified yet.
David McAuley 2: Thanks to those at IETF and alsewhere in the early hours for taking part
avri doria: it may still be the case that the bylaw is flawed.
Cheryl Langdon-Orr (CLO): Thanks everyon I think we are progrssing well... Talk more soon. Bye for now...
Erich Schweighofer: Servus from Vienna
avri doria: bye
Greg Shatan: Goodbye all!
Jorge Cancio (GAC Switzerland): thanks and bye!
Markus Kummer 2: bye all
Andreea Brambilla: Thank you!