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

[John Curran]

On Sep 8, 2016, at 2:00 AM, Nigel Roberts <nigel at channelisles.net> wrote:
> 
> Human Rights are fundamental rights.

Indeed.

> ICANN must hold itself to that minumum standard. Failing to do so makes the ICANN system a lesser alternative to a multinational, treaty-based solution.

You actually have not stated an particular standard or norm or convention for the 
applicable human rights, nor specifically how you believe that such a standard
should be applicable to ICANN.

> It is trite public policy (at least for those countries that adhere to the UDHR and ECHR) that a certain minumum of human rights standards must be ensured.
> 
> These include
> 
> - the right to life
> - freedom from slavery
> - freedom from torture
> - the right to a fair hearing (when considering civil as well as criminal rights and obligations)
> - the right to property (incuding intellectual property)
> - the right to free expression.

Note that these rights may be in conflict with one another in some situations (e.g. right
of free expression and right to property)   We need to have a clear framework for ICANN
that allows parties to express the implications that they feel will result from a particular
policy development action (or potentially even policy implementation action)

> Some of these rights are absolute. You are surely not suggesting that the multistakeholder PDP takes precedence over an obligation to ensure the right to life?

Intersting.  You cite “right to life” (implying that it is absolute) and yet right to security of
person is quite important as well.  Many countries would suggest that security of person
cannot preempt right to life, yet others would (via capital punishment/death penalty) take
a different stance, thus undermining the assertion that there are “absolute” human rights.

With respect to ICANN respect for the multistakeholder process, the point is simply that
ICANN’s actions only have validity to the extent that they are based in the multistakeholder
process; i.e. it is not clear that ICANN has any validity to take action arrived at by means 
other than multistakeholder processes – this does not mean that ICANN’s MS processes
must “preempt” human rights, only that ICANN has a limited role and mission, one which
is based on multistakeholder-based principles, and therefore if the action necessary to 
sustain human rights in some situations involves actions outside of the multistakeholder
domain, it may be up to another party to undertake them.  For example, it may become
necessary to engage in the use of force (e.g. armies) to ultimately prevent extreme HR
rights abuses – ICANN’s failure to participate doesn’t mean lack of support for the cause,
only recognition that ICANN does not have to do everything in this world. 

> Some are qualified. It is FOR the multistakeholder (i.e. legislative) process to bring forward details proposals, for example, on exactly HOW the right to free expression is to be balanced against the right to property (the UDRP is a particular example of where this creative tension manifests its
> 
> So it's not for ICANN to re-imagine or re-legislate human rights -- it is for us to pro-actively set an example of how we incorpoate fundamental rights as being a core value of our system.

And here I thought the goal was to provide a human rights (HR) framework of interpretation, 
so that actions that occur at ICANN that may result in human rights impacts can be carefully
considered in light of those potential impacts.   This would include doings such things as:

  - Identifying  reference norms or standards documents that specify
     the human rights that are commonly acknowledged and would be
     a valid basis for raising a potential concern with regard to ICANN
     actions
 
  - Establishing open and transparent processes for parties to raise
    concerns with an ICANN policy development action (or potentially
    with policy implementation actions) by noting the HR which they
    feel is impact and the manner of the impact

  - Ensuring that all potential HR impacts receive full and due consideration,
    including a complete and meaningful response that either sustains the 
    concern or explanation of why (in balance) the potential impact is not 
    probable or sufficient in magnitude to be sustained. 

As to “incorporating fundamental rights as being a core value of our system”,
I have no idea what that means, but would note that we already have a long
list of core values, and adding one more to the list (absent a clear framework
of how it is to be applied) only increases the uncertainty of ICANN outcomes,
rather than providing any durable mechanism to ensure that ICANN considers
potential human right impacts in its activities.

Thanks,
/John

p.s. my views alone.   Feel free to use, reuse, discard, or destroy as desired.