[Wp4] Fwd: Re: [] Variety of formulation for Human Rights bylaw that were made. - corrected
Avri Doria
avri at acm.org
Thu Aug 13 05:58:52 UTC 2015
Hi,
I think you mention that the Ruggies principles are indeed generic. WS2
would be when we figured out how they applied to ICANN.
You also quote the most essential parts:
(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.
Nothing it these 3 should be terribly difficult to commit to. But in
the WS1 we are only looking to half of the first commitment - 'to
respect human rights' and in fact limiting it to our mission and
operations. How we do that is the longer task.
While it is true that I initially recommended we commit to the Ruggie
Principles in the Bylaws, I realized that this was too heavy a lift for
ICANN at this point and am thus recommending we only take the first step
- a commitment to respect Human Rights in maintaining the openness of
the Internet, the commitment we have yet to make in replacing NTIA as
oversight, and art of our accountability requirements fro NTIA.
Much of the discussion you have initiated talks about new commitments
you indicate we might have to take on, and expansive requirement. I am
only talking about meeting the current commitment that is ours by virtue
of US Gov't oversight.
I would very much like for us to understand how Ruggie applies to the
special condition of ICANN as a NGO that acts like a business, but that
is the longer task, one I still think is inappropriate for WS1. I know
you insist on taking us down this road, but I do believe you are
confusing a very simple issue.
avri
On 13-Aug-15 05:13, Greg Shatan wrote:
> 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 <mailto: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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>
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> Dr Paul Twomey
> Managing Director
> Argo P at cific
>
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