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

[Paul Twomey]

Without going into the xxx politics too much (although I could not 
resist copying Becky ;)  ), part of my point is by putting HR wording 
into the bylaws we will directing the attention of various parties to 
new ways to try to halt/affect ICANN decisions and operations.  This may 
be a good thing - but we need to consider the implications very carefully.

As for the Ruggie Principles, I quoted an excerpt below and pointed to a 
real issue on ccTLD agreements.    I have to say that I am increasingly 
wondering whether at least the ccTLD links should be exempted or at 
least carefully prescribed.

Paul

On 8/13/15 3:28 AM, Martin Boyle wrote:
>
> I can certainly empathise with Paul’s comments – and I think others 
> can, too:  we have seen comments about limiting to mandate etc.
>
> Remembering a comment that Nigel made early on, referring to the 
> Ruggie Principles (The UN’s “Guiding Principles on Business and Human 
> Rights”: 
> http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf), 
> I wonder whether reference to following business obligations 
> associated with these principles as appropriate to ICANN’s core 
> mandate would provide us with a framework for WS1?  If the US has 
> signed up to Ruggie (which I assume it has), then this would actually 
> be a statement (and acceptance) of the status quo
>
> Ruggie’s recommendations include responsibilities of the States, so 
> many of the overarching issues would be for the country of 
> incorporation – and their action to enforce.  Just thinking about the 
> .xxx example Paul cites (and there was a big question in Lisbon about 
> ICANN going into content!), wouldn’t it have been possible for the 
> American Family Foundation to have litigated on the grounds of 
> exploitation of children and undermining the family?
>
> Just a thought!
>
> Martin
>
> *From:*wp4-bounces at icann.org [mailto:wp4-bounces at icann.org] *On Behalf 
> Of *Paul Twomey
> *Sent:* 12 August 2015 17:57
> *To:* wp4 at icann.org
> *Cc:* Burr, Becky
> *Subject:* Re: [Wp4] Fwd: Re: [] Variety of formulation for Human 
> Rights bylaw that were made. - corrected
>
> 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 <http://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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-- 
Dr Paul Twomey
Managing Director
Argo P at cific

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

www.argopacific.com

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