I think this is a good conversation - and points out that we are now
dealing in uncharted territory.
It is fine for the UN agencies like ITU to have very general
statements about support Human Rights and not getting into
definitions - because this is done elsewhere in the UN, and because
there is not a litigation process available to bring action against
the agencies.
But ICANN is VERY different. Not only is it open to litigation -
its whole operational structure (recognizing registries and
registrars, hiring staff, operating the IANA processes, agreements
with RIRs and at least some ccTLDs, etc) is structured through
contracts. And these contracts can be litigated in US (and
potentially) other courts.
ICANN is not like many of the companies which adopt Human Rights
principles etc in their operations (many in my experience are mining
companies, manufacturers making foreign investment etc) in two ways:
1. ICANN does not get to say that it will not go into certain
relationships - especially in the operation of the IANA it must
engage with all TLDs, especially ccTLDs, in the world. A mining
company can see a potential investment opportunity may bring
pressures on some human rights commitments and decide not to enter
into this investment. ICANN does not have that luxury when it comes
to ccTLDs - or for that matter which governments may be present at
the GAC and attending ICANN meetings and participating in policy
formulation.
2. ICANN not only has thousands of contracting parties, but is now
moving to allow affected parties to bring actions in the Independent
Review Panel. Indeed, in some jurisdictions, affected parties may
now be able to bring action in the courts, even if they are not
contracting parties
In both the courts and the Independent Review Panel litigants are
going to bring actions against ICANN for decisions which may be seen
as counter to the bylaws.
Now this is all very well. And ICANN should have this
accountability.
But I fear that if we leave very vague wording in the bylaws about
ICANN's commitment to Human Rights, we will setting off years of
litigation by human rights activists and entrepreneurial academics
and lawyers to challenge all sorts of ICANN decisions. For
instance, entering into an agreement with the government run ccTLD
of a certain country; or an attempt to portray the Californian right
to work employment practices as being counter to the UDHR's right to
assemble and establish unions etc.
Worst still, such actions may be sponsored by interested parties in
the ICANN community to delay decisions with which they do not agree.
I note that Avri's note included the following from the UN:
"
13. The responsibility to respect human rights requires that business
enterprises:
(a) Avoid causing or contributing to adverse human rights impacts
through their own activities, and address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that
are directly linked to their operations, products or services by
their business relationships, even if they have not contributed to
those impacts."
So consider a specific case: a country forces its ccTLD to apply
censorship rules to registrations and ensures that the ccTLD gives
registration details for any political dissidents with domain
names. Now ICANN has an agreement with that ccTLD. Does this
leave ICANN vulnerable to legal action for failure to operate under
its bylaws? Is ICANN under some obligation to act?
I really think we need to be careful about wording we put in the
bylaws amendments. It needs a lot of stress testing. Not only
against all of ICANN's activities, but also against all the rights
laid out in the UDHR and the ICCPR . Remember, many of these
rights, especially the economic and social rights are rarely
discussed by western human rights activists.
But consider what the American Family Foundation and others who
opposed the establishing the .xxx tld could have done in terms of
legal action under
Article 10 of the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) which recognises the family as "the natural and fundamental
group unit of society", and requires parties to accord it "the
widest possible protection and assistance". Parties must take
"special measures" to protect children from economic or social
exploitation, including setting a minimum age of employment and
barring children from dangerous and harmful occupations. I think
it would certainly have taken us into a litigation about ICANN
having a role in content.
I am afraid today that I do not have specific wording that I would
offer - but I am increasingly wondering whether "just put in high
level language in the bylaws' approach may not be more disruptive
and counter-productive in the long term.
Paul.
--
Dr Paul Twomey
Managing Director
Argo P@cific
US Cell: +1 310 279 2366
Aust M: +61 416 238 501
www.argopacific.com
On 8/13/15 1:24 AM, Stephanie Perrin
wrote:
I
agree with Greg that the focus is on policy development and
subsequent implementation. I agree with Niels (and many in the
thread before him) that not all of the dissection of what
adherance means needs to be done in WS1. I think this group will
bog down forever if we try to parse that list of covenants and
figure out which apply to ICANN's policy role, particularly given
that tricky grey area of content control which we must not step
over. SO my bottom line is, can we agree to find language that
refers to the UDHR and the ICCPR as it applies to ICANN's limited
mandate and pass the rest of the work on to both the Working Party
on Human Rights and to WS2? My own view is that the work needs to
be done, but not slow down the finalization of the proposal, and
discussion of the various convenants promises to get really slow
and difficult. I suspect WS2 will have to get to the next level,
but certainly not the bottom, of what it would mean for ICANN to
respect human rights in its mandate.
Having said this, ICANN's responsibility to be a global
institution with fair and equitable access does impact certain of
the convenants and we will inevitably get into what it means to be
non-discriminatory when acting "in the public interest".
I thought Avri had already come up with a great formulation for
the purposes of WS1.
cheers
Stephanie Perrin
On 2015-08-12 11:02, Greg Shatan wrote:
GS: Clearly, we are not starting from
scratch. However, I don't think ICANN can be directly compared
to a company like Cisco. Cisco runs a business; it doesn't make
policy or set norms. ICANN may have a corporation with
employees at its core (or arguably, not at the core), but it is
more than that -- it is a multistakeholder governance
ecosystem. I may be wrong, but I expect that the primary
concern relating to ICANN and Human Rights relates to policy
matters (and resulting implementation matters) and not to how
ICANN run itself as a business (e.g., hiring, pay, benefits and
other employee matters; purchasing decisions; etc.). As such, we
really are breaking new ground here. As mentioned in my bullet
point list, it would be interesting to know how other more
comparable organizations have dealt with Human Rights
commitments (e.g., the I* organizations, standard-setting NGO's,
self-regulatory industry bodies, multistakeholder organizations,
etc.)
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