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

Tue Sep 6 15:36:08 UTC 2016

Good question
Jorge

Von: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] Im Auftrag von Paul Rosenzweig
Gesendet: Dienstag, 6. September 2016 17:35
An: 'Greg Shatan' <gregshatanipc at gmail.com>; 'Nigel Roberts' <nigel at channelisles.net>
Cc: ws2-hr at icann.org
Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition.  I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it.  For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to.  Hence my question:  Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

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From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Tuesday, September 6, 2016 10:58 AM
To: Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>>
Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

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<mailto: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>
<mailto: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>
    <mailto: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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