[CCWG-ACCT] Regarding mission statement and human rights

Greg Shatan gregshatanipc at gmail.com
Sat Jan 30 01:01:27 UTC 2016


I'll give it a shot:

Within its Mission and in its operations, ICANN will respect
internationally recognized Human Rights.  ICANN would be obligated to
respect internationally recognized Human Rights, but only to the extent
consistent with its mission.  Respect might be defined at least in part
according to the Ruggie principles, i.e., avoid infringing on the
internationally recognized human rights of others), but that is going to
require work in Work Stream 2.  Again, if we use Ruggie, "internationally
recognized Human Rights" would mean "at a minimum, as those expressed in
the International Bill of Human Rights and the principles concerning
fundamental rights set out in the International Labour Organization’s
Declaration on Fundamental Principles and Rights at Work."  The reference
to the ILO Declaration shows a bit of a mis-fit with ICANN as a business
enterprise, since Ruggie is aimed primarily at business's relationship with
employees, supply chain, etc., and may not fit so well with an organization
whose "product" is technical coordination and the implementation of global
policy set by non-employee stakeholders.  So this might be good for ICANN's
overworked policy staff!  Of course, that is a Work Steam 2 discussion....

This commitment shall not in any way create an obligation for ICANN, or any
entity having a relationship with ICANN, to protect or enforce Human Rights
beyond what may be required by applicable law. The key here is that it does
not "create an obligation" for ICANN.  In other words, it doesn't add any
new "protection or enforcement" obligations for ICANN.  However, there is
nothing in this language that is in any way preventative, nor does it take
away (or "relieve") any obligations ICANN may have -- whether in law, ICANN
policy, or in contract.  As such, it does not prevent ICANN from choosing
to do anything within its mission that could be viewed as protecting or
enforcing Human Rights regardless of whether its part of applicable law.
(I'll save my response on the "applicable law" discussion for a different
email.)  This sentence also acknowledges that ICANN does have an obligation
to follow all applicable laws (including those that protect Human Rights).
Ruggie classifies "protecting" and "enforcing" as inherent the powers (and
duties) of government, not of a private company.  In explaining
"protecting" Human Rights, Ruggie refers to a duty to "prevent,
investigate, punish and redress [Human Rights] abuse through effective
policies, legislation, regulations and adjudication." This implies that
"protecting and enforcing" is not merely doing something that might qualify
as protecting, enforcing or preventing, etc. Human Rights; it is using the
power of the state to do so. (The rest of the Ruggie definition is even
more oriented toward what states can do.)  Of course, a private company can
(and should) try to "prevent [Human Rights] abuse" in its workplace
"through effective policies."  If I follow Ruggie's logic, that would still
be considered "respecting" Human Rights and not protecting or enforcing
Human Rights.  As such, if you follow Ruggie literally, it could be said
that ICANN (not having the power of the state) could not "protect or
enforce" Human Rights even if it tried.  Of course, ICANN has powers that
are different from those of a typical "business enterprise."  And "protect
and enforce" can be construed more broadly than Ruggie does, so that things
businesses do could be called "protecting" and "enforcing."

In particular, this does not create any additional obligation for ICANN to
respond to or consider any complaint, request, or demand seeking the
enforcement of Human Rights by ICANN. This is intended to insulate ICANN
from claims that the new Bylaw creates a new job for ICANN -- Human Rights
"enforcer."  Again, ICANN could "enforce" Human Rights, if it chose to do
so, and if you don't read "enforce" so narrowly that it is only the power
of a sovereign state. (If you do read "enforce" narrowly, ICANN couldn't
"enforce" anything even if it tried, since it is a private entity -- but
that gets us back to the issue that ICANN is not a typical "business

This Bylaw provision will not enter into force until a Framework of
Interpretation is developed as part of “Work Stream 2” by the
CCWG-Accountability or another Cross Community Working Group chartered for
such purpose by one or more Supporting Organizations or Advisory
Committees. One could say this means the Bylaw is merely symbolic, and does
nothing until the FoI is developed and adopted, and is itself "in force."
 However, it does a little more than that, for better or worse -- it
creates a presumption that the particular words of the Bylaw are the rights
words for the Bylaw, regardless of where Work Stream 2 takes us.  So, if
the work of the CCWG-WS2 concludes that these words have "issues" and we'd
all be better off with variations, additions, subtractions or wholesale
changes, it will be a bit of an uphill battle to remove the
"not-yet-in-force-but-already-adopted" language and replace it with "new
and improved" language.  It may also tend to force WS2 to try and deal with
these words and make the best of it, rather than coming out at the end of
the process with both a FoI and a matching bylaw. But c'est la vie....

ICANN shall support the establishment and work of such a Group to
facilitate development of the Framework of Interpretation as promptly as
possible.  To paraphrase Warren Zevon, "Give us lawyers, guns and money."

Hope that helps, and is not too stultifying.  Some may disagree with some
of what I've said, but hey! that's what Work Stream 2 is for.

[I should add that the usual caveat applies, as it always does (this is not
legal advice, this does not form a lawyer-client relationship, (but feel
free to send money), etc.).]


On Thu, Jan 28, 2016 at 12:59 PM, Nigel Roberts <nigel at channelisles.net>

> 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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