[CCWG-ACCT] Regarding mission statement and human rights
Greg Shatan
gregshatanipc at gmail.com
Fri Jan 29 21:01:10 UTC 2016
The "respect/protect/enforce" rubric being used here is lifted from the UN
Guiding Principles on Business and Human Rights (aka the Ruggie
Principles), which are meant to implement the UN's "protect, respect and
remedy" framework.
http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
In that division of responsibilities, it is the role of governments to
protect against human rights abuses and to engage in enforcement (i.e.,
"prevent, investigate, punish and redress such abuse through effective
policies, legislation, regulations and adjudication") in order to protect
against human rights abuses.
Meanwhile, business enterprises have the role of respecting human rights,
i.e., they should avoid infringing on the internationally recognized human
rights of others and should address adverse human rights impacts with which
they are involved.
That is not to say that ICANN should adopt those exact definitions or that
ICANN should adopt the Ruggie Principles at all. There have been concerns
expressed regarding how a number of provisions fit ICANN's role, in
particular concern about the second prong of "respect": addressing adverse
human rights impacts with which they are involved, since that could
obligate ICANN to take actions with regard to all of its contractual
counterparties and even with regard to ccTLDs.
One could argue that ICANN does not fit the mould of a "business
enterprise" at all, and that it's role should be different from "respect",
at least as laid out in the Ruggie Principles. In other words, mapping the
"respect/protect/enforce" concepts against ICANN's Bylaws and activities
may not work so well.
There are others who would say that the Ruggie Principles work quite well
and that any modifications are minor and don't disqualify Ruggie as the
starting point for considering ICANN's obligations.
This is all food for thought for Work Stream 2, I guess.
Greg
On Thu, Jan 28, 2016 at 12:59 PM, Nigel Roberts <nigel at channelisles.net>
wrote:
> MAYBE, just maybe, we can put this to bed.
>
> Can you construe (deconstruct) the latest language for me, the way you see
> it, please?
>
> As an aside, whilst I have no issue with the word enforcement, since ICANN
> will not employ blue helmets, I am not sure that IP interests would be that
> keen on relieving ICANN of its obligation to protect the right to property
> (on matters properly within mission).
>
> On 28/01/16 17:51, Greg Shatan wrote:
>
>> Nigel,
>>
>> I have to disagree with your interpretation of the proposed bylaw. The
>> "applicable law" restriction only applies to ICANN's obligation (if any)
>> to "protect" and "enforce" human rights. It does not apply to ICANN's
>> obligation to "respect" human rights. As such, ICANN would be required
>> to take into account human rights from the posture of "respecting" them.
>>
>> What exactly does that mean? Well, that's what will be determined in
>> WS2. Avri believes that it would include a human rights impact
>> assessment. Is she right? Wait for WS2. Some think the Ruggie
>> Principles should apply, while others believe that there are significant
>> problems with that idea. Who is right? Wait for WS2. Is this intended
>> to change how ICANN operates (including policy development) or is just a
>> backstop to prevent ICANN from backsliding from its current level of
>> commitment (arguably enforced by the NTIA relationship)? Wait for WS2.
>> Are sequels better than the original or do they tend to be
>> unimaginative, bloody and trite? Wait for WS2.
>>
>> Greg
>>
>> On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel at channelisles.net
>> <mailto:nigel at channelisles.net>> wrote:
>>
>> But do you want a cleverly drafted by-law that guarantees that human
>> rights are not required to be taken into account (whilst appearing
>> to say the contrary), or a word-is-my-bond committment from the
>> current Board, who are at least, a lot more trustworthy than some
>> Boards that there were heretofore?
>>
>> You can only pick one.
>>
>>
>> On 28/01/16 17:25, Avri Doria wrote:
>>
>> Hi,
>>
>> The problem with a firm commitment by the Board is that it
>> something
>> that can be undone or changed by a future Board with ease and at
>> their
>> will. Unlike a bylaw which involves a multistakeholder process.
>>
>> Without the bylaw, there is no guarantee.
>>
>> avri
>>
>> On 28-Jan-16 11:21, Kavouss Arasteh wrote:
>>
>> HR should be referenced in intermediate Bylaws and drafted
>> at WS2. Based on our dis discussions and REC . once FOI is
>> ready the final legal text shall be approved and included
>> in the Definitive Bylaws. In the meantime Board,s firm
>> commitment once approved by CCWG shall apply
>> Kabouss .
>>
>> Sent from my iPhone
>>
>> On 28 Jan 2016, at 16:33, Avri Doria <avri at acm.org
>> <mailto:avri at acm.org>> wrote:
>>
>>
>>
>> On 28-Jan-16 09:25, Andrew Sullivan wrote:
>>
>> On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel
>> Roberts wrote:
>> ICANN must simply respect human rights. That's it.
>>
>> I wish I knew what this is supposed to mean for
>> ICANN action, though.
>> I'm trying to imagine something where ICANN would
>> act differently in
>> the presence or absence of the bylaw, and I've been
>> unable to come up
>> with anything.
>>
>> As I have mentioned before, for me the prime issue is
>> that human rights
>> impact analysis be done as part of the PDP process as
>> opposed to just
>> waiting to see if some government agency slaps our wrist
>> afterwards for
>> not having considered the impact of, e.g., freedom of
>> expression or an
>> open internet. At this point we just do stuff and then
>> wait to see if
>> NTIA, or any other federal agency, or the GAC lets us
>> know that we have
>> messed up. Requiring that we respect Human Rights
>> includes it being in
>> scope as a consideration that is understood and
>> discussed when policy is
>> made and considered for approval.
>>
>> Without the bylaw such considerations remain out of
>> scope in a future
>> where there is no backstop for our actions. i believe
>> that taking on
>> this responsibility is our only reliable response to the
>> NTIA
>> requirement. And I believe that the fears of such a
>> bylaw have been
>> shown to be emotional and not fact based.
>>
>>
>>
>> (That's also, I suppose, why I don't really have an
>> opinion about what ought to be done here, except
>> that we should come
>> to a speedy conclusion so that the document can ship
>> and we can get
>> the transition over with.)
>>
>> I see this as a gating issue.
>>
>> Though I do not think our work can ever be called
>> speedy, even if we
>> were to reach consensus this week.
>> And this is just the start of the transition, unless you
>> also believe
>> that implementation and WS2 are not part of the
>> transition.
>>
>> avri
>>
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