[cc-humanrights] Comment for the "Streamlined Approach" (?) Text

Seth Johnson seth.p.johnson at gmail.com
Sun May 29 12:20:41 UTC 2016

I have developed a little text as a personal "think piece" overnight.
Unfortunately, I have to switch to some other deliverables for other
projects by Tuesday.    What I'll do is take my think piece and
address the framework that's been developed thus far.  Hopefully today
or overnight, but I have to get to a better place on my other things,
sorry . . .

Here are some links that should give an idea why standard of review is
important.  It's not quite the same issue of human rights, more about
governments' rights to do local/domestic policy in relation to those
Investor-State disputes that arise under trade treaties.   These
references should help you see very clearly the real questions that
arise regarding how the UN's rights-based approach actually works, and
how treaty-based human rights are not yet well confronted.  Just a
quick scan of these to get the basic idea should suffice:

~ The Next Battleground: Standards of Review in Investment Treaty Arbitration

~ The Source for Determining Standards of Review in International Investment Law

~ Do Investment Treaties Prescribe a Deferential Standard of Review?

US Supreme Court has only just started looking at this, with the
following ruling relevant to the above area of concern (investor-state

BG Group v Argentina:


On Fri, May 27, 2016 at 8:14 AM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> On Fri, May 27, 2016 at 6:50 AM, Niels ten Oever <niels at article19.org> wrote:
>> Dear Seth,
>> On 05/26/2016 10:29 PM, Seth Johnson wrote:
>>> (Reposting with a subject topic more relevant to the specific
>>> suggestion I put in this commentary.)
>>> You should be careful from the outset when you use language about
>>> ICANN to define the parameters of the project.
>>> The title of what we're doing can and should be stated the way you
>>> have, but what we're doing entails understanding what happens to human
>>> rights (of all kinds, not just treaty-based ones) in the transition.
>> What are non-treaty based human rights?
> Rights like we claim by constitutional acts.  Those are the rights
> with the strongest standard of review.  We risk losing track of that
> if we don't acknowledge it and incorporate it explicitly.
>>> Though the FOI must be scoped to ICANN and the By-laws, the matter
>>> involves a broader view, considering the issue with reference to the
>>> surrounding context and where we are ending up in the transition.
>>> Even if ICANN has very appropriately declared it has no governmental
>>> authority and doesn't enforce human rights, our task includes making
>>> clear what happens when we move away from *that* one government as the
>>> "host," to "all the governments" (understanding that *extremely*
>>> amorphously).
>> In theory it doesn't matter for the FoI where ICANN is located, because
>> it is a positive commitment, right? This is something that is explicilty
>> mentioned in the UN Guiding Principles to also cover for organizations
>> operating in courties with weak rule of law and human rights track record.
> Okay, ICANN being private means the rights that we are most accustomed
> to (the ones that we often see enforced by our courts when they
> overturn laws that violate fundamental rights and find them
> unconstitutional) aren't applicable to ICANN.  Those rights are limits
> on government, not on private parties.  Those rights are limits on
> NTIA, however, and any government agency.  This is very important,
> because if we remove NTIA, we change the legal basis in a way that
> takes away the strongest rights, so all of a sudden we're in a
> different context without those stronger limits at work.  One of the
> most important reasons why NTIA has been very circumspect is
> *specifically because* it has that strong set of limits on it.  This
> is also why this concern is almost invisible.
> ICANN not enforcing rights and not having governmental authority
> frames rights in terms of "governments create rights and enforce
> them," excluding ICANN from playing that role.  This is a "statutory"
> notion of rights, which applies to rights created by legislative acts
> -- or by treaties among governments (treaty-based rights).  Those are
> interpreted by courts by a weaker standard of review.  This is because
> the body that created them can always modify them -- they aren't
> rights claimed as prior to anything the government does *by the
> original founding act of the people declaring the legitimate limits of
> the government.*
> The notion in this group I think is about how ICANN is subject to
> human rights, not enforcing rights, following the stipulation in the
> By-laws.  And the discussion has been talking about human rights
> chiefly in terms of treaty-based rights.  So the first thing is to be
> clear that the transition has to recognize that fundamental rights are
> the most reliable and we do not intend for the transition to allow
> those to be reduced or removed from the picture without recognizing
> that as an effect of the transition.
> This is best done by explaining the standards of review, how that
> changes.  None of this is intended to dismiss the value of the kinds
> of treaty-based human rights that the UN and other organizations (like
> the countries of Europe) have declared and set up various systems
> around.  It's simply to make sure we know what's happening and what
> we're doing in the transition.
> So recognizing fundamental rights, commenting on standards of review
> is critically important.
>>> It's important to remember that the nature of the issue of human
>>> rights isn't necessarily structurally wedded to ICANN structures, so
>>> we can't accidentally let it be treated that way. Addressing the
>>> issue of human rights should mean addressing how we understand human
>>> rights to be referenced with respect to *what the transition means*
>>> for human rights.  This can be done very well by commenting on the
>>> nature of "standard of review" and how the transition to a "more
>>> international" legal basis for rights affects that.
>> Aren't we now defining the standard of review with the FoI ?
> No, standards of review aren't "statutorily" constructed.  They are
> ways of interpreting laws and rights that courts develop based on the
> nature of their legal foundations.  You aren't doing anything more
> foundational than declaring what a private corporation's approach to
> human rights will be.  You can't make them fundamental limits that
> way.  You can't make the standard of review stronger -- any more than
> legislatures can.
> The European Court of Human Rights doesn't do judicial review, doesn't
> consider the constitutionality of laws (or treaties for that matter).
> That's because it addresses rights that are based on a treaty, in a
> "statutory" mode -- not rights that are claimed by the peoples of
> Europe as fundamental limits on their government(s).  The EU Court of
> Justice *does* do judicial review, because it has been established
> that way.  That's why the Safe Harbor Agreement was overruled (plus
> one other interesting factor that uniquely allowed them to review a
> treaty by that strict standard, which I'll mention later).
>>> That would be my comment on the document(s?) we've seen so far.  In
>>> the "streamlined approach" one, I would say add a point observing that
>>> peoples in individual countries (or federal unions, as we just saw
>>> with the Safe Harbor Agreement in the EU) have very strong rights that
>>> have to be recognized.
>> I think you are referring to the vizualization. This maps how ICANN
>> policies relate to human rights, I am not sure where Safe Harbor would
>> fit into that, except for under the RAA's that are already mentioned. Do
>> you think we should expand that?
>> Concrete text suggestions are very welcome.
> I will.  No, Corinne first posted a bit that was made up in large part
> of relevant human rights instruments, and someone said a simpler
> approach should be used, and you chimed in listing a few bullet
> points.  I would add a bullet point or two about standards of review
> and not overlooking or reducing fundamental rights.  I would think it
> would be good to reference the EU's Charter of Fundamental Rights
> because it represents the way they managed to get strong fundamental
> rights in relation to a treaty.  The point being to be sure to say
> that that's a viable way to handle these concerns, and important in
> light of the more limited strength of treaty-based rights.  Now that
> we're talking about human rights we can address the implications of
> the transition that way.
> I'll offer some edits on the text by tomorrow night, maybe sooner.
> Seth
>>> (As we start out, I think we can and should set aside the tangentially
>>> related matter some have raised elsewhere, of CA as the legal locus
>>> for ICANN's incorporation.  That's only one notion of the issue of
>>> jurisdiction, and for that matter isn't particularly relevant to human
>>> rights, certainly given that I presume we all see the human rights
>>> issue the way I just described it -- working more from understanding
>>> how things work as we move to the "all the governments" international
>>> context.  It can be considered in the jurisdiction discussion, and is
>>> vaguely relevant to rights in another sense -- ICANN as a "person" and
>>> its member[s] holding rights that relate to a US state in the "US
>>> federal republic of republics.")
>>> Seth
>> Best,
>> Niels
>>> On Thu, May 26, 2016 at 10:40 AM, Niels ten Oever <niels at article19.org> wrote:
>>>> Hi all,
>>>> Thank you very much for your great comments. This is going to be quite a
>>>> long email, so brace yourself ;)
>>>> 1.
>>>> This is indeed too broad. This should be:
>>>> 'Scoping the relation between ICANN and Human Rights'
>>>> 2. Glossary
>>>> Let's try the glossary at the bottom and HR principles on top.
>>>> 3.
>>>> We should have a disclaimer text on top or at the bottom indicating that
>>>> 'this is a preliminary scoping, pending a full Human Rights Impact
>>>> Assessment'
>>>> 4.
>>>> I would not drag in the European Court of Human Rights, I am afraid this
>>>> will make matter only more complicated. But let me know what you all think.
>>>> 5.
>>>> I am hesitant to use the work 'ecosystem', because it goes back to the
>>>> thinking of Buckminster Fuller which implies that the system is
>>>> 'natural' and therefore 'evident' and 'inescapable'. Therefore I am a
>>>> bit hesistant of using these terms. (This all gets much better discussed
>>>> in the beautiful BBC documentary by Adam Curtis: 'all watched over by
>>>> machines of loving grace')
>>>> 6.
>>>> I have made an initial idea for the rights dendogram (and principles),
>>>> let me know what you think, or Giulia could have a first go at it:
>>>> **On top**
>>>> Human Rights principles:
>>>> * Inherent - human rights derive from the humanity of each person.
>>>> * Universal -  all human beings have the same human rights.
>>>> * Inalienable - human rights cannot be given up.
>>>> * Indivisible -  there are no conflicts between rights and no priorities
>>>> among rights.  There will be situations or occasions where rights must
>>>> be balanced and prudent decisions taken about how all rights can best be
>>>> protected and promoted
>>>> * Interdependent and Interrelated -  the enjoyment and fulfilment of any
>>>> right depends on the enjoyment and fulfilment of other rights.
>>>> * Equality and Non-discrimination: All individuals are equal as human
>>>> beings and by virtue of the inherent dignity of each human person
>>>> * Participation and Inclusion: All people have the right to participate
>>>> in and access information relating to the decision-making processes that
>>>> affect their lives and well-being.
>>>> * Accountability and Rule of Law: States and other duty-bearers are
>>>> answerable for the observance of human rights. In this regard, they have
>>>> to comply with the legal norms and standards enshrined in international
>>>> human rights instruments.
>>>> **Dendogram 2**
>>>> First Generation:
>>>> - Universal Declaration of Human Rights
>>>> Second Generation:
>>>> - International Covenant on Civil and Political Rights (ICCPR) 1966
>>>> - International Covenant on Economic, Social and Cultural Rights
>>>> (ICESCR) 1966
>>>> - International Convention on the Elimination of All Forms of Racial
>>>> Discrimination (ICERD) 1965
>>>> - Convention on the Elimination of All Forms of Discrimination Against
>>>> Women (CEDAW) 1979
>>>> - Convention on the Rights of Persons with Disabilities (CRPD) 2006
>>>> Guidelines:
>>>> UN Guiding Principles on Business and Human Rights (2011)
>>>> UN Global Compact (2000)
>>>> 7. There should be no space between WHO and IS (so WHOIS)
>>>> 8. After DNSSEC we should perhaps also add: Implementation of DANE
>>>> 9. Gender / Race / Diversity issues probably could be renamed as:
>>>> Participation, Inclusion, Equality and Non-Discrimination
>>>> and we can add to the final column:
>>>>  - participation by people with a disability in ICANN process (including
>>>> meetings)
>>>>  - anti-harassment policy
>>>> 10. I think all DIDP, DCND and IDNs should not be named as accronyms,
>>>> but rather fully written down.
>>>> 11. Addition to the glossary:
>>>>  DNSSEC =  Domain Name System Security Extensions
>>>>  IGO = Intergovernmental Organization
>>>>  INGO = International Non-Governmental Organziation
>>>>  RPM = Rights Protection Mechanism (as related to Intellectual Property
>>>> Rights)
>>>> I think IP adress can be remove
>>>> 12. Inline repsonses to Avri's great e-mail (thanks!):
>>>> On 05/22/2016 04:01 PM, avri doria wrote:
>>>>> Hi,
>>>>> I like the mindmap way of looking at this.  Also allows for each of the
>>>>> end nodes to go into more detail without needing to show that detail all
>>>>> the time.  Is the mindmap file available and is further work planned on
>>>>> it?  Is it in one of those environments that allows for cooperative
>>>>> online work?
>>>> Unfortunately not, it is made by a designer, but it would be great if a
>>>> volunteer wants to reproduce this as (online) mindmap.
>>>>> Or is this only an Article 19 proposal as the file name
>>>>> indicates.
>>>> Nope, this work was initially started by Marilia, then first images were
>>>> produced by APC, finally I took over the baton because others were
>>>> focused on other work. Once this is approved by the CCWP it is, as
>>>> everything here, a product of the CCWP HR.
>>>>> Some points on the content of the chart.
>>>>> - On new gTLD you may want to add something about gTLD and developing
>>>>> economies under economic, social (and what happened to cultural) rights.
>>>>> I.e. new gTLD program comes under this category as well.
>>>> Indeed, we should add cultural so it reads:
>>>> 'Economic, social and cultural rights', but gTLDs are mentioned under
>>>> freedom of association, right? It also say 'community based TLDs'. You
>>>> think we should elaborate.
>>>>> - under FoA and new gTLDs, you may want to consider two branches, one
>>>>> dealing with the existing program, in which case the AGB of 2012, as an
>>>>> implementation of the policy of 2007, is an issue.  For new gTLD, the
>>>>> AGB, as an implementation is not the starting point, but the
>>>>> reevaluation of the GNSO Policy of 2007 and its implementation will be
>>>>> the issue. This is similar to what was done for FoE.
>>>> I am having a hard time understanding how the Applicant Guidebook (AGB)
>>>> implementation and revisioning is done. Could someone with more
>>>> understanding of this suggest a vizualization (wording of branches)?
>>>>> - under FoA, is the structure of ICANN internal working structure for
>>>>> the community at all an additional consideration?
>>>> Sure, how shall we word it?
>>>>> - under gender and diversity, is the ombudsman the only consideration?
>>>>> What about the new policies such as the one that is being proposed in
>>>>> https://www.icann.org/public-comments/expected-standards-revisions-2016-05-16-en
>>>> Adressed above and added a few.
>>>> So I hope this helps, with this I'll ask Giulia to make a new version,
>>>> but keep your comments and text suggestions coming!
>>>> Best,
>>>> Niels
>>>>> avri
>>>>> On 21-May-16 06:07, Niels ten Oever wrote:
>>>>>> Dear colleagues,
>>>>>> Attached a second draft visualization made by the designer, as always,
>>>>>> looking forward to your comments!
>>>>>> What text is missing? What more would you like to be in here?
>>>>>> I was thinking (maybe too much, maybe not), we could maybe also do a
>>>>>> dendogram based on rights. With the UDHR at the bottom, the ICCPR and
>>>>>> the ICESCR coming from that and then all the smaller treaties following
>>>>>> that, and finally of course the Ruggie Principles and the Global
>>>>>> compact. This might build on the work done by Tatiana and Aarti on
>>>>>> relevant frameworks? It defintely needs some research and lawyer touch :)
>>>>>> Curious to hear what you all think!
>>>>>> Best,
>>>>>> Niels
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