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@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@channelisles.net
<mailto:nigel@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@acm.org
                <mailto:avri@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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