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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