[cc-humanrights] More comments.

Thu May 28 15:15:06 UTC 2015

Dear all

Just wanted to say hello, rather late into this really interesting and 
productive conversation on this CCWP for ICANN. The thread was quite 
long and substantial so have had to take time to get up to speed; 
nothing like a long train-ride to enable that!.

Being relatively new to ICANN at this level of work, it is quite 
encouraging to see how far this work has gone.

I have not much to add in terms of the discussions around the title of 
the document, and also the symbolic and legally substantive issues 
around Human Rights as enshrined in international law and CSR. All the 
points raised are for a non-expert make sense.

A couple of comments if I may though on the document as it is readied 
for circulation to the iCANN community; based on reading the penultimate 
draft but hopefully still relevant for the final tweaks, and future 
references.

1) The revised preamble/framing of this initiative for ICANN folk: this 
works pretty well now as long as there remains room for eventual 
inclusion of later human rights treaties and covenants that tend to drop 
off the list e.g. those on disability, the rights of women, rights of 
children etc. ICANN may want to, at this very early stage, restrict its 
thinking to privacy and freedom of expression, or focus on consumer 
rights at the expense of more inclusive human rights norms and keep 
stipulating this, particularly in terms of consumer rights and CSR 
frameworks. Nonetheless, revising this project in a way that continues 
to more inclusive is in the long term the right way to go even if there 
may be push-back: international human rights law and norms do not stop 
with the ICCPR and ICESCR, and norms change slowly over time as do legal 
instruments such as the UN Bill of Rights .... :) .

a) So moving from there to the current introduction; where a clear 
distinction is made between protecting and respecting human rights. This 
makes sense so do make sure that the remaining references to 
'protecting' human rights are redacted later in the document (e.g. page 
18).

b) That said and recalling point 1 above, the strong emphasis on how 
this initiative will only acknowledge"human rights content [that] is 
limited to internationally recognized human rights..." (page 8) strikes 
me as a bit too restrictive in that international recognition of the 
full range of human rights instruments that have been put in place since 
the UDHR varies across these treaties and covenants.

This prominent place given to limitations and restrictions on which 
human rights instruments will be taken on board, even if for strategic 
purposes, This could in the future put this whole initiative on to the 
back foot as these "later" human rights instruments become relevant to 
ICANN's work.

I am not a legal expert nor scholar of international human rights law 
but could this second limitation on page 8 perhaps be rephrased to 
accommodate just these nuances and in way that does not scare the horses 
(so to speak) but also does not shut the door for future developments. 
Not sure how to rephrase this but something like "human rights content 
refers specifically to recognized international human rights law and 
norms....."

2) The latter point affects what follows in the document and how 
different stakeholders will respond: So If I could just make one longer 
comment on the current text in light of comments related to the IRPC 
Charter. And, as some of you know, what comes next is from the point of 
view of the work of the IRP Coalition and its Charter of Human Rights 
and Principles of the Internet. This is mentioned, and referenced on 
page 12;

It was suggested that the IRPC Charter does not have the requisite 
status because some of its Clauses "fall below international standards". 
The legal point - and ensuing debates - raised here notwithstanding 
(which Gabrielle provided for the IRPC Charter review at the 2014 IGF so 
they are well taken), I would like to note that seeing the IRPC Charter 
given its due place in the final draft confirms that these reservations 
need not preclude mention of the IRPC Charter in the context of this new 
opening for ICANN.

This is because whatever the verdict on its content at present may be 
(Version 1.1) in the ICANN work the IRPC Charter is being rightly 
attributed its role as a foundational framework for thinking about human 
rights (broadly defined) within the more technically focused IG spaces - 
within and beyond ICANN. This is because it is arguably the first 
document that takes international law seriously as well as those more 
ethical though less legally rigorous positions advocated in civil 
society spaces i.e. the IRPC Charter links human rights (in toto) 
obligations for states to those articulated for corporations through CSR 
undertaking. For this reason alone it deserves this mention.

What do I mean here? The critical points about some parts of the IRPC 
Charter referring to emerging rather than existing rights reach back to 
the earliest days of the IRPC Charter drafting process back in 2009; a 
period of starting out that saw discussions not unlike the ones we have 
had on this thread for the ICANN application of human rights in its work 
5-6 years, and several UN resolutions etc, later. But even with these 
imperfections the IRPC Charter, in its own terms a "living document" 
(taking its cue from the UDHR) is a formative part of the ethical and 
legal landscape in which this ICANN-based initiative has emerged.

So good to see that the IRPC Charter reference is still there though 
could I suggest the following revision of this paragraph on page 12 for 
accuracy:

"Within the framework of the Internet Governance Forum, the Internet 
Rights & Principles Coalition was created in 2009 with the 
mission ÃƒÂ‚Ã‚Â“to make rights on the Internet and their related duties, 
specified from the point of view of individual users, a central theme of 
the internet governance debate held in the IGF context".  In 2010-11 the 
Internet Rights & Principles Coalition developed its Charter of Human 
Rights and Principles for the Internet, distilling its 21 clauses into 
10 Rights and Principles for the Internet based on international human 
rights laws and norms.."

3) A minor editing point: Page 12, note 29 is incomplete so a minor edit 
could be "The IRPC Charter is available, in booklet form, in 8 
languages, at http://internetrightsandprinciples.org/site/"

4) And on fiddly things like spelling and typos: Other edits too are 
needed to have consistent spelling (US or UK Spelling) and there are 
still some typos still need correcting.

5) On Stephanie's points about human rights scaring people; too true. So 
all the more reason for this initiative in ICANN to take courage; they 
scare not only the very states that are supposed to uphold them and in 
so doing protect their citizens, by law and in principle, but also 
powerful corporations, and ICANN is one, who too often fudge fundamental 
freedoms under CSR waffle or step back from "respecting" human rights in 
deed as well as words by appealing to the limits set on them by various 
sorts of national jurisdictions.. :)

Will try and make the upcoming call tomorrow. Thanks Niels for all this 
great text-shepherding work.

best wishes
Marianne F

On 27/05/2015 16:32, Niels ten Oever wrote:
> Hi all,
>
> For your information, please find the comments from Gabrielle attached.
> Would be great to see the comments from Stephanie as well.
>
> If we want to make this a product of the CCWP, it would be great to have
> a bit more people.
>
> Also happy to discuss this at our call on Friday.
>
> Best,
>
> Niels
>
>
> _______________________________________________
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> cc-humanrights at icann.org
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-- 
Marianne Franklin, PhD
Professor of Global Media and Politics
Convener: Global Media & Transnational Communications Program
Goldsmiths (University of London)
Department of Media & Communications
New Cross, London SE14 6NW
Tel: +44 20 7919 7072
<m.i.franklin at gold.ac.uk>
@GloComm
https://twitter.com/GloComm
http://www.gold.ac.uk/media-communications/staff/franklin/
https://www.gold.ac.uk/pg/ma-global-media-transnational-communications/
Chair of the Global Internet Governance Academic Network (GigaNet)
Steering Committee/Former Co-Chair Internet Rights & Principles Coalition (UN IGF)
www.internetrightsandprinciples.org
@netrights

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