[Ws2-hr] When should ICANN uphold human rights?

[Greg Shatan]

A few quick comments on the thread above.

It is important that we be precise with our verbs.  The Ruggie Principles
use three verbs, each with different meanings and with application to
different actors: "respect," "protect" and "enforce."  I'm not suggesting
we should adopt the Ruggie Principles' meanings for all of these words, but
they could be useful as a starting point.  As a matter of fact, I don't
think we can or should adopt the Ruggie Principles' definition of "respect"
in the ICANN context.  But we should be careful about how we use these
words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard
meaning in the human rights context that I'm aware of.  "Enforce" was also
used in this thread, but in a very different context than in the Ruggie
Principles, where "enforcement" applies only to the activities of states.
We need to determine what we mean by each verb we use, and especially by
"respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of
respect earlier in this thread when he referred to the draft FoI document.
I believe Paul Twomey in particular has pointed out the significant issues
that could arise if ICANN were to adopt part (b) of this definition:

(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 I understand this, it requires a party to exert pressure, through
business relationships, on third parties.   I don't think it's at all
settled that ICANN's relationships with applicants, registries and
registrars are "business relationships," even where these parties have
contracts with ICANN.  But if some or all of these are "business
relationships," this could easily be read to require ICANN to impose
restrictions on registries and registrars, and on applicants, that would be
extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the
implementation phase.  Once the ICANN policy process has resulted in
recommendations which are adopted, the primary focus in implementation
needs to be faithfully carrying out the policy recommendations. It's fair
to assume that human rights have been taken into account in the policy
development process, along with and balanced against other rights and
concerns, and that what results from the multistakeholder process should be
given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran at istaff.org> wrote:

> On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists at nielstenoever.net>
> wrote:
>
> ...
> 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.
>
>
> Interesting predicament.  If one imagines the potential for an update to
> one of
> the IANA registries that in turn poses an impact to human rights – i.e.
> following
> the specific guidance from the appropriate community that is contracting
> with
> ICANN/PTI for IANA services would result in an HR impact, then the above
> proposed responsibility (to prevent or mitigate...) would suggest that
> ICANN
> should to do otherwise.
>
> Note that the event of ICANN/PTI acting contrary to the clear direction of
> one of
> the respective communities (names, numbers, protocols) with regard to IANA
> registry updates could easily precipitate a crisis that results in the end
> of ICANN,
> and thus should probably be avoided...
>
> ICANN (including PTI) needs to place the highest priority upon fidelity to
> the
> outcomes of the multi-stakeholder process, since its existence is
> predicated
> (particularly in a post-NTIA contract environment) upon the presupposition
> of the validity of that process.  This is also the reason why I noted that
> there
> is a significant difference between application of HR principles within
> the multi-
> stakeholder policy development process when compared to later on during the
> policy implementation phases.
>
> /John
>
> Disclaimer: my views alone.  Feel free to use, share, or discard as
> desired.
>
>
>
>
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