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

[Dr Eberhard W Lisse]

At ICANN Meeting in New Delhi, Paul and I had a meeting arranged by his PA (of Wheetbix fame) in his suite.

I asked him what gave ICANN the right to to with ccTLD Managers as they pleased. 

His answer was: "Because we control the root".

Amazing foresight that man had, summarizing, ICG, CWG, CCWG and the multistakeholder approach of the transition process in one sentence, years before it was contemplated.

el

-- 
Sent from Dr Lisse's iPad mini

> On Aug 12, 2015, at 18:57, Paul Twomey <paul.twomey at argopacific.com> wrote:
> 
> 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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