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

Tue Sep 6 14:58:18 UTC 2016

I have a good deal of sympathy with Nigel's position.  But that leaves us
with a significant issue:

1.  The Bylaw uses the verb "respect."
2.  "Respect" has (at least arguably) a settled meaning in the field of
corporations and human rights, from the Ruggie Principles.
3.  It was not the intention of the CCWG to adopt the Ruggie Principles'
definition of "respect."
4.  It's up to this group, initially, to consider what we mean by "respect"
in the context of ICANN and human rights (and our recommendations will then
go back to the CCWG and out for public comment, etc.).
5.  If we do not recommend that the Ruggie Principles' definition of
"respect" be adopted in its entirety, we will either:
     a. End up with a definition of "respect" that varies from the Ruggie
Principles, or
     b. Need to recommend an amendment of the Bylaws to change the word
"respect" to a word or phrase that is not a "term of art" in the
application of human rights, and we will need to recommend an appropriate
word or phrase for that purpose.
6.  Picking up on Nigel's last point, we will need to understand and
explain "respect/protect/enforce" and explain that our recommendation for
what ICANN should do does not fall into any of those three defined terms as
they are used in the Ruggie Principles.  Frankly, we need to do this sooner
rather than later, as it is really an essential part of our task, and this
discussion highlights how careful we need to be in choosing certain words
in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel at channelisles.net>
wrote:

> Actually, I will strongly caution against using terms-of-art with
> divergent or 'roll-your-own' definitions.
>
> It may be tempting for ICANN to create our own variant definiton of terms
> like 'respect for', but this is likely to cause confusion, and even
> potential conflict with government actors (among others) to whom human
> rights law, and principles directly apply.
>
> I submit what we need to do is understand fully and explain the meaning of
> such terms-of-art and put them in the context of ICANN's voluntary adoption
> of a common, albeit basic, commitment to fundamental rights standard.
>
> Re-definition, is not the way forward, I suggest.
>
>
>
>
> On 06/09/16 03:12, Greg Shatan wrote:
>
>> 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
>> <mailto:jcurran at istaff.org>> wrote:
>>
>>     On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists at nielstenoever.net
>>     <mailto: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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