[Wp4] Fwd: Re: [] Variety of formulation for Human Rights bylaw that were made. - corrected

[Paul Twomey]

I think this is a good conversation - and points out that we are now 
dealing in uncharted territory.

It is fine for the UN agencies like ITU to have very general statements 
about support Human Rights and not getting into definitions - because 
this is done elsewhere in the UN, and because there is not a litigation 
process available to bring action against the agencies.

But ICANN is VERY different.   Not only is it open to litigation - its 
whole operational structure (recognizing registries and registrars, 
hiring staff, operating the IANA processes, agreements with RIRs and at 
least some ccTLDs, etc) is structured through contracts.  And these 
contracts can be litigated in US (and potentially) other courts.

ICANN is not like many of the companies which adopt Human Rights 
principles etc in their operations (many in my experience are mining 
companies, manufacturers making foreign investment etc) in two ways:
1. ICANN does not get to say that it will not go into certain 
relationships - especially in the operation of the IANA it must engage 
with all TLDs, especially ccTLDs, in the world.    A mining company can 
see a potential investment opportunity may bring pressures on some human 
rights commitments and decide not to enter into this investment.  ICANN 
does not have that luxury when it comes to ccTLDs - or for that matter 
which governments may be present at the GAC and attending ICANN meetings 
and participating in policy formulation.
2. ICANN not only has thousands of contracting parties, but is now 
moving to allow affected parties to bring actions in the Independent 
Review Panel.   Indeed, in some jurisdictions, affected parties may now 
be able to bring action in the courts, even if they are not contracting 
parties

In both the courts and the Independent Review Panel litigants are going 
to bring actions against ICANN for decisions which may be seen as 
counter to the bylaws.

Now this is all very well.   And ICANN should have this accountability.

But I fear that if we leave very vague wording in the bylaws about 
ICANN's commitment to Human Rights, we will setting off years of 
litigation by human rights activists and entrepreneurial academics and 
lawyers to challenge all sorts of ICANN decisions.   For instance, 
entering into an agreement with the government run ccTLD of a certain 
country; or an attempt to portray the Californian right to work 
employment practices as being counter to the UDHR's right to assemble 
and establish unions etc.

Worst still, such actions may be sponsored by interested parties in the 
ICANN community to delay decisions with which they do not agree.

I note that Avri's note included the following from the UN:
"

13. The responsibility to respect human rights requires that business
enterprises:

     (a) Avoid causing or contributing to adverse human rights impacts
     through their own activities, and address such impacts when they occur;
     (b) Seek to prevent or mitigate adverse human rights impacts that
     are directly linked to their operations, products or services by
     their business relationships, even if they have not contributed to
     those impacts."


So consider a specific case:  a country forces its ccTLD to apply 
censorship rules to registrations and ensures that the ccTLD gives 
registration details for any political dissidents with domain names.   
Now ICANN has an agreement with that ccTLD.   Does this leave ICANN 
vulnerable to legal action for failure to operate under its bylaws?  Is 
ICANN under some obligation to act?

I really think we need to be careful about wording we put in the bylaws 
amendments.   It needs a lot of stress testing.  Not only against all of 
ICANN's activities, but also against all the rights laid out in the UDHR 
and the ICCPR .   Remember, many of these rights, especially the 
economic and social rights are rarely discussed by western human rights 
activists.

But consider what the American Family Foundation and others who opposed 
the establishing the .xxx tld could have done in terms of legal action 
under**Article 10 of the International Covenant on Economic, Social and 
Cultural Rights (ICESCR) which recognises the family as "the natural and 
fundamental group unit of society", and requires parties to accord it 
"the widest possible protection and assistance". Parties must take 
"special measures" to protect children from economic or social 
exploitation, including setting a minimum age of employment and barring 
children from dangerous and harmful occupations.   I think it would 
certainly have taken us into a litigation about ICANN having a role in 
content.

I am afraid today that I do not have specific wording that I would offer 
- but I am increasingly wondering whether "just put in high level 
language in the bylaws' approach may not be more disruptive and 
counter-productive in the long term.

Paul.^


-- 
Dr Paul Twomey
Managing Director
Argo P at cific

US Cell: +1 310 279 2366
Aust M: +61 416 238 501

www.argopacific.com



On 8/13/15 1:24 AM, Stephanie Perrin wrote:
> I agree with Greg that the focus is on policy development and 
> subsequent implementation.  I agree with Niels (and many in the thread 
> before him) that not all of the dissection of what adherance means 
> needs to be done in WS1.  I think this group will bog down forever if 
> we try to parse that list of covenants and figure out which apply to 
> ICANN's policy role, particularly given that tricky grey area of 
> content control which we must not step over.  SO my bottom line is, 
> can we agree to find language that refers to the UDHR and the ICCPR as 
> it applies to ICANN's limited mandate and pass the rest of the work on 
> to both the Working Party on Human Rights and to WS2?  My own view is 
> that the work needs to be done, but not slow down the finalization of 
> the proposal, and discussion of the various convenants promises to get 
> really slow and difficult.  I suspect WS2 will have to get to the next 
> level, but certainly not the bottom, of what it would mean for ICANN 
> to respect human rights in its mandate.
> Having said this, ICANN's responsibility to be a global institution 
> with fair and equitable access does impact certain of the convenants 
> and we will inevitably get into what it means to be non-discriminatory 
> when acting "in the public interest".
> I thought Avri had already come up with a great formulation for the 
> purposes of WS1.
> cheers
> Stephanie Perrin
>
> On 2015-08-12 11:02, Greg Shatan wrote:
>> ​GS: Clearly, we are not starting from scratch. However, I don't 
>> think ICANN can be directly compared to a company like Cisco.  Cisco 
>> runs a business; it doesn't make policy or set norms.  ICANN may have 
>> a corporation with employees at its core (or arguably, not at the 
>> core), but it is more than that -- it is a multistakeholder 
>> governance ecosystem.  I may be wrong, but I expect that the primary 
>> concern relating to ICANN and Human Rights relates to policy matters 
>> (and resulting implementation matters) and not to how ICANN run 
>> itself as a business (e.g., hiring, pay, benefits and other employee 
>> matters; purchasing decisions; etc.). As such, we really are breaking 
>> new ground here.  As mentioned in my bullet point list, it would be 
>> interesting to know how other more comparable organizations have 
>> dealt with Human Rights commitments (e.g., the I* organizations, 
>> standard-setting NGO's, self-regulatory industry bodies, 
>> multistakeholder organizations, etc.)
>
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