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

Thu Aug 13 03:13:45 UTC 2015

Reading through the Ruggie Principles, three things jump out at me:

1. We can't limit this to ICANN's policies and implementation; adherence to
the Ruggie Principles clearly requires  ICANN to make that commitment as a
"business enterprise," which extends at least to ICANN as an employer, as a
contracting party and as a provider of services).

2. The relationship between an ICANN commitment to Human Rights and the
operations and output of the various ICANN structures (GNSO, SGs,
Constituencies, ccNSO, ASO, GAC, RSSAC, SSAC, ALAC and RALOs) is unclear.
To the extent these are Bylaws-created structures, it seems much more
likely than not that the obligations created by the commitment would fall
equally on each of the structures, and not just on "ICANN-the-corporation."

3.  The foundational documents that define the proposed ICANN Human Rights
commitment include at least these six: the UDHR, the two related
International Covenants, the Ruggie Principles, the Declaration on
Fundamental Principles and Rights at Work and the ICT Sector Guide.

4.  Adherence to the Ruggie Principles requires a significant operational
commitment (see Principles 15-24).

5.  The Ruggie Principles don't fit ICANN as a policy and implementation
body nearly as easily as they fit ICANN as a business enterprise.

We can't wait to Workstream 2 to address these points. We don't have to
write tomes (at least not in WS1), but we at least need to provide clarity
on these and other defining aspects, and define and conduct a "stress test"
analysis. (Putting bylaws adoption in WS1 and Stress Tests in WS2 seems to
be a particularly untenable position, and counter to our basic working
methods as a WG.)

This doesn't need to delay us, but it does mean that we need to do a whole
lot more before Dublin besides setting a time to meet.

Greg

P.S.  A more detailed discussion on some of the above points follows. The
above is my attempt to be more pithy.

The UN Guiding Principles for Business and Human Rights (Ruggie Principles)
are founded on the "International Bill of Human Rights," which consists of
the UDHR plus "the main instruments through which it has been codified: the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights," and "the principles
concerning fundamental rights in the eight ILO core conventions as set out
in the Declaration on Fundamental Principles and Rights at Work."
 According to the Ruggie Principles, "These are the benchmarks against
which other social actors assess the human rights impacts of business
enterprises."

Niels ten Oever also included the "ICT Sector Guide on Implementing the UN
Guiding Principles on Business and Human Rights" on our list. (Niels's list
also included the Ruggie Principles, UDHR and the International Covenant on
Civil and Political Rights, but oddly not the International Covenant on
Economic, Social and Cultural Rights.)

It seems clear to me that if the Ruggie Principles are going to be one of
the definitive documents for defining ICANN's commitment to Human Rights,
it needs to make that commitment as a business enterprise and not merely as
a policy-making enterprise.  The commitment thus extends to ICANN as an
employer and contractor, and to all the services ICANN provides, not merely
policy development and implementation.  (It would be rather an odd
statement for ICANN as a "business enterprise" to exempt its own
operations.)

Reading the Ruggie Principles, it strikes me that ICANN as a governance
ecosystem and policy-making enterprise is a somewhat awkward fit, compared
to ICANN as a "normal" business enterprise.

It also raises the interesting question of how an ICANN commitment to Human
Rights would affect the operations of bodies created directly or indirectly
by ICANN, such as the GNSO and its Stakeholder Groups and Constituencies,
the ccNSO, the ASO, the GAC, the RSSAC and SSAC, and the ALAC and the
various RALOs.

The Ruggie Principles also require significant work on the part of a
compliant business enterprise, including:

(a) A policy commitment to meet their responsibility to respect human
> rights; (b) A human rights due diligence process to identify, prevent,
> mitigate and account for how they address their impacts on human rights;
> (c) Processes to enable the remediation of any adverse human rights impacts
> they cause or to which they contribute.

This is Principle 15; Principles 16-24 flesh out how these policies and
processes would be implemented in a generic business enterprise (again,
applying this to the ICANN structures and ecosystem raises a number of
significant questions).

On Wed, Aug 12, 2015 at 3:43 PM, Paul Twomey <paul.twomey at argopacific.com>
wrote:

> Hi Nigel
>
> Thanks for this - and sure, I do have particular experience which informs
> my view.  But I have never had the view that ICANN gives out the right to
> run ccTLDs.  Being recognized in the IANA database, however, is essential
> to be a ccTLD.
>
> I think you are making my point.   Some specific clarity on rights for
> ccTLDs and others under specific ICANN actions/functions would be useful.
> I note that you named at least 3 rights which may be the main ones relevant
> to ICANN's mission.
>
> I am afraid I did not follow your argument of how subsidiarity
> automatically limits Human Rights protection.  The Ruggles language, which
> is the UN's recommendations on how companies should follow Human Rights
> explicitly says companies should act even if they have not contributed to
> the breach (see below).  I suspect that to protect the principle of
> subsidiarity, the bylaws' statement on Human Rights should explicitly state
> that subsidiary places a limit on ICANN's human rights accountability for
> policies at the ccTLD level.
>
>
> 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."
>
>
>
> As as aside, the right to property is an interesting one - for the
> operation of the IANA it has been a standing position of the IETF community
> and IANA/ICANN from the beginning that a TLD is not property.   A recent
> decision in the US partly dealt with this and concluded that ccTLDs cannot
> be garnisheed like property.
> http://www.leagle.com/decision/In%20FDCO%2020150105808/STERN%20v.%20THE%20ISLAMIC%20REPUBLIC%20OF%20IRAN#
>
> Other aspects of running a ccTLD (eg customer databases) etc are of course
> property.
>
> We could go on...
>
> Paul
>
> PS  the  .xxx issue did get resolved before a independent tribunal. ;)
>
>
> On 8/13/15 4:23 AM, Nigel Roberts wrote:
>
>
>
> On 12/08/15 19:03, Paul Twomey wrote:
>
> 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
>
>
> I submit that it is.
>
>
> >            but we need to consider the implications very carefully.
>
> I think this is correct.
>
>
> 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.
>
>
> I suggest it is the ccTLD area where (careful) attention to respect for
> fundamental rights IS needed.
>
> ICANN has no role in directing how a ccTLD manager sets their policy.
>
> That is a matter for subsidiarity and is clearly delineated in the ICANN
> bylaws setting up the ccNSO, so how this affects ICANN, is principally, how
> it affects the IANA role, and the policy making role.
>
> As a former CEO of ICANN, from a particular timeframe, you understandably
> have a certain Weltanschaung - and perhaps it is one which views ICANN as
> giving out the authority to run a ccTLD.  I'm not sure that this is the
> correct view.
>
> But I am certain that whatever the source authority of ICANN's role, (i.e.
> a contract with the US government, tablets of stone from God etc), that
> ICANN surely needs embrace certain minimum standards in all its work (i.e
> gTLD and ccTLD) which, inter alia, must include
>
> - Protection of Property (including intellectual property) Rights
> - Protection of Private and Family Life
> - Protection of Free Expression
> - Right to fair hearing before independent and impartial tribunal
>
> And .AFRICA (and before that .XXX) is not the first time ICANN has been
> see to be lacking in the latter, of particular note.
>
>
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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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