[Wp4] Draft high level wording on Human Rights - Invitation to comment

Paul Twomey paul.twomey at argopacific.com
Wed Sep 2 15:16:25 UTC 2015 

Nigel

Let me put my own case - it is not one of being biased against the UN.  
I am not and the UN has got little to do with my concern.

My concern remains focused: the practical operational necessities of 
maintaining the IANA function which is the most important thing ICANN 
does.   At the core of the IANA function, ICANN has to deal with EVERY 
country code and generic top level domain operator.   If it does not, we 
do not have a global internet - or at least not one coordinated by 
ICANN.   It is impossible for ICANN to be held accountable for the human 
rights performance of these operators who are required to act under 
their own countries laws - during my tenure as CEO even had to deal with 
situations where ccTLD operators were being shot at by forces linked to 
at least parts of governments were not been getting what they want.     
So my concern is that the Ruggie Principles state that a company is 
accountable to

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.

My concern with the Principles is this: the company needs to prevent 
human rights impacts of its contracting or business partners. This if 
pushed on ICANN by actors (not just inside ICANN community) who are 
against the way a ccTLD is being operated (or even a gTLD which comes 
under national law) could result in either:

- ICANN getting involved in political and content issues in every 
country (completely contrary to its technical coordination role) and/or
- If it does seek to promote human rights at the ccTLD level, many 
countries seeking an alternative to the single IANA function, and the 
breaking up of the present single global interoperable Internet.

Either one would be disastrous.

And it may fine for us to say "but ICANN does not set ccTLD policy" etc. 
but wait for a political advocacy group to take this provision to a US 
or other court and the court may still say that ICANN is obligated.

Hence my suggestion that we be clear that human rights be limited only 
to ICANN's own ways of conducting its work within its mission.

I am supportive of the modified language in the draft.

Paul

On 9/2/15 9:57 PM, Niels ten Oever wrote:
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> Hi Nigel,
>
> On 09/02/2015 09:38 AM, Nigel Roberts wrote:
>> No, I think this is an incorrect representation. The sub-group did
>> not recommend that. Some members of the sub-group recommended this.
>> I was not on the last call and I have a problem with
>> "internationally recognised" simply because there's no such thing,
>> and I suspect this is well known.
>>
>> Syria, ISIL, Egypt, North Korea don't recognise anyone's human
>> rights. (All taken from BBC news stories in the last 2 days!).
>>
> I think 'internationally recognized' here means human rights are an
> inherent part of international law.
>
> I can live with a reference 'human rights' without mentioning
> 'internationally recognized' or 'fundamental' because I don't think
> the latter two add something significant to the first.
>
>> I know Paul Twomey has got a particular bias against the UN, which
>> he expressed on the list, but are we, as ICANN, going to formally
>> reject the UN Declaration on Human Rights here?
>>
> The concerns of Paul Twomey were about risk of ICANN being liable
> because of this commitment, right? Or did I miss something? I think
> that issue was discussed on the list and the conclusion was that this
> is not an expansion of existing commitments as defined in Art. 4 of
> ICANNs Articles of Incorporation.
>
>
>> And reject the recent work that shows how non-state-actors should
>> incorporate fundamental rights principles?
>>
>> There is a very big difference between the UN as an organisation
>> which can be bureaucratic, politicised and inefficient (just think
>> ITU) and the fundamental princtiples of the Declaration which have
>> been put together by the brightest brains of the 20th Century from
>> major nations following the worst conflict in human history.
>>
> +1
>
> Best,
>
> Niels
>
>> I think it would be hubris to think we (ICANN) could design a
>> better.
>>
>> I don't think that debate is over.
>>
>>
>>
>> Nigel
>>
>> PS: As you know, 'due to having to work for a living' I missed the
>> last call -- on a similar WG within my own constituency we had a
>> guideline that no contentious changes were made without consensus,
>> and that meant two calls minumum.
>>
>>
>> On 09/02/2015 06:18 AM, León Felipe Sánchez Ambía (via Google Docs)
>> wrote:
>>> León Felipe Sánchez Ambía <mailto:leonfelipe at sanchez.mx> has
>>> invited you to *comment on* the following document: Draft high
>>> level wording on Human Rights
>>> <https://docs.google.com/document/d/15t32Y7DyzGCAR21XT9koN9y2hNK_nAif
> uNZGwaFfnlQ/edit?usp=sharing_eid&invite=CPbhiZkN>
>>>
>>>
> Sender's profile photoDear all,
>>> As per our last call, here is the link to the google doc that
>>> tries to reflect our discussion and propose an amended version of
>>> the initial draft on the high-level wording on human rights. Open
>>> in Docs
>>> <https://docs.google.com/document/d/15t32Y7DyzGCAR21XT9koN9y2hNK_nAif
> uNZGwaFfnlQ/edit?usp=sharing_eid&invite=CPbhiZkN>
>>>
>>>
> This email grants access to this item. Only forward it to people you
>>> trust. Snapshot of the item below:
>>>
>>> CCWG proposed language on Human Rights
>>>
>>> The CCWG has identified the need to include in its final proposal
>>> a high-level statement on ICANN’s commitment to respect
>>> fundamental rights in all its actions. Therefore a special
>>> sub-group was created to discuss and propose a draft wording to
>>> be included in the CCWG’s proposal and an explanatory note on how
>>> this proposed wording was reached and forward to the larger group
>>> for discussion and call for consensus.
>>>
>>> With the help of Nigel Roberts, a first explanatory paper was
>>> circulated. This paper explained the nuances and differences
>>> between human rights and fundamental rights and also highlighted
>>> a comprehensive list of documentation that could help as guidance
>>> for the sub-group’s discussion.
>>>
>>> Also, a first high-level wording was drafted by Nigel Roberts
>>> and discussed in the sub-group’s calls. The original draft for
>>> the high-level objective  read:
>>>
>>> “RECOGNISING ICANN's special role in the functioning of the
>>> world-wide Internet;
>>>
>>> FURTHER RECOGNISING ICANN's unique nature as a
>>> multi-stakeholder, private-sector led organisations;
>>>
>>> HAVING IN MIND THE COMMITMENT of the corporation set out in
>>> Article 4 in ICANN's Articles of Incorporation to carrying out
>>> its activities in conformity with relevant principles of
>>> international law and applicable international conventions and
>>> local law;
>>>
>>> ASSERTING that it wishes to ensure the same level, when acting
>>> within its distinct mission, of rights for Internet users and
>>> businesses that would be expected of it were it a state actor;
>>>
>>> HEREBY AFFIRMS its support without reservation for the United
>>> Nations Guiding Principles on Business and Human Rights, and
>>> intends to develop by-laws and policy to give it full effect
>>> within the work and defined mission of the Corporation.”
>>>
>>> In its first call the sub-group discussed this high-level draft
>>> and participants showed an overall support for the underlying
>>> principle but suggested some changes to this first draft.
>>>
>>> Comments were made on the implication of restricting the
>>> proposed wording to refer to the United Nations Guiding
>>> Principles on Business and Human Rights rather than having a more
>>> general reference to internationally recognized Human Rights and
>>> keep the specifics to be fleshed out as part of WS2.
>>>
>>> There were also comments on the implications that could have
>>> adding the words “without reservation” to the proposed wording
>>> and the actual need to express this explicitly as it doesn’t seem
>>> that ICANN could actually reserve any right to not fully respect
>>> Human Rights once it is committed to it and furthermore when
>>> reference documents have been detailed later in WS2.
>>>
>>> Having this in mind the sub-group proposed that the original
>>> wording be modified as follows (changes highlighted in bold):
>>>
>>> “RECOGNISING ICANN's special role in the functioning of the
>>> world-wide Internet;
>>>
>>> FURTHER RECOGNISING ICANN's unique nature as a
>>> multi-stakeholder, private-sector led organisations;
>>>
>>> HAVING IN MIND THE COMMITMENT of the corporation set out in
>>> Article 4 in ICANN's Articles of Incorporation to carrying out
>>> its activities in conformity with relevant principles of
>>> international law and applicable international conventions and
>>> local law;
>>>
>>> ASSERTING that it wishes to ensure the same level, when acting
>>> within its distinct mission, of rights for Internet users and
>>> businesses that would be expected of it were it a state actor;
>>>
>>> HEREBY AFFIRMS its support to internationally recognized Human
>>> Rights, and intends to develop by-laws and policy to give it full
>>> effect within the work and defined mission of the Corporation.”
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> Google Docs: Create and edit documents online.    Logo for Google
>>> Docs <https://drive.google.com>
>>>
>>>
>>>
>>> _______________________________________________ Wp4 mailing list
>>> Wp4 at icann.org https://mm.icann.org/mailman/listinfo/wp4
>>>
>> _______________________________________________ Wp4 mailing list
>> Wp4 at icann.org https://mm.icann.org/mailman/listinfo/wp4
> - -- 
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org
>
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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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