[bestbits] Request for comments on ICANN's CCWG Accountability draft proposal

[Norbert Bollow]

On Wed, 9 Dec 2015 13:38:28 +0100
Niels ten Oever <lists at digitaldissidents.org> wrote:

> On 12/09/2015 11:00 AM, Norbert Bollow wrote:
> > Alas this commitment is extremely weak, so weak in fact that it
> > appears to me that including it with that particular wording may be
> > well worse than not including anything at all on human rights.

Upon consideration of the points raised by Niels, I have changed my
mind on this, and I now think that the proposed human rights bylaw is
much better than the alternative of having no such bylaw at all (even
if I still regard some aspects of the particular wording as highly
problematic.)

Many thanks to Niels for clarifying that aspect which I had
misunderstood.

> I would politely disagree, but I also do not understand the logic of
> why not including something is better than including something. Sounds
> a bit defeatist.

That strong concern was based on *incorrectly* reading the proposed
bylaw as at least allowing the interpretation that according to it,
ICANN's human rights related responsibilities would be limited to the
*legally* *enforceable* obligations which are shared by all California
corporations. With the relevant laws of the US and the state of
California of course having been written with business entities in
mind, without giving any thought to the possibility that one California
corporation might end up being in charge of some aspect of governance
on a global scale.

I would argue that every organization that undertakes governance
activities automatically has very significant human rights related
responsibilities which go way beyond what can reasonably expected of
all business enterprises. I would further insist that that these
responsibilities exist regardless of whether this fact is recognized in
the bylaws or not. Of course, recognizing this fact in the bylaws is
good and important, provided that this is done in a way that does not
purport to reduce or limit those human rights related responsibilities.

Making these responsibilities explicit is after all a very good step
towards getting ICANN to actually act accordingly. 

On the other hand, anything that substantively limits ICANN's set of
human rights related responsibilities to a smaller set than the full
set of responsibilities (which ICANN already implicitly has anyway)
would IMO be a major loss. We must not give up on any human right in any
respect regardless of whether California courts might do so e.g. in
relation to people who are not US citizens or residents.

> > Specifically, the proposed human rights bylaw reads:
> > 
> > “*Within* *its* *mission* *and* *in* *its* *operations*, ICANN
> > will respect internationally recognized human rights. This
> > commitment does 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_. 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.” (boldface and underlinings for emphasis in the 
> > original)
> > 
> > In my view, the main point of a human rights article in the bylaws 
> > would be to ensure that ICANN recognizes and respects an
> > obligation regarding human rights that goes beyond the obligations
> > that all California corporations have anyway under applicable law.
> > 
> 
> What you want is exactly what the bylaw says. ICANN will respect human
> rights. But will not protect or enforce human rights, since this is
> the role of states. I think you would appeciate the difference between
> the role of ICANN and the role of states.
> 
> This is exactly the differentiation as it is made for instance in the
> UN Guiding Principles for Business and Human Rights.

In the UN Guiding Principles for Business and Human Rights, the term
“respect human rights” is used to denote the global standard of expected
conduct for all business enterprises wherever they operate.

So, as currently drafted, the bylaw appears to say that ICANN's set of
human rights related responsibilities should consist exactly of what is
(from this international human rights perspective) expected of
California based business enterprises, regardless of the fact that
ICANN has a global governance role, while business enterprises don't or
at least shouldn't have such a role.

Of course I agree that ICANN cannot have a kind of role that could
correspond to the responsibility of governments to protect and enforce
human rights.

After all, the governance function for which ICANN has been created
is quite different from the functions of national governments.

I would suggest that correspondingly, the human rights obligations which
should be understood as resulting from the governance function for
which ICANN is responsible are of a different kind.

> > Further, I find the language in that draft bylaw highly
> > inappropriate insofar it suggests that human rights obligations can
> > possibly be limited to what is "required by applicable law".
> 
> That is not true, the applicable law part is only in relation to
> 'protect and enforce human rights'.

You're right that the applicable law part is only in relation to
'protect and enforce human rights', and I must admit that in my first
reading of the proposed bylaw, it was not sufficiently clear to me that
"respect", "protect" and "enforce" must here be understood as terms of
art, with the effect that the "applicable law" part in fact does not in
any way reduce the acknowledgement of the responsibility to respect
human rights. So that is indeed fully general, as appropriate, and I
was mistaken to think otherwise. 

I still think however that organizations which engage in any form of
global governance have human rights responsibilities that go beyond the
responsibility to respect human rights in the sense in which that term
is used in the UN Guiding Principles for Business and Human Rights.

Therefore I still view the proposed bylaw as problematic, with the
remaining concern however not being about what it explicitly says, but
because it looks at ICANN's human rights responsibilities from the
perspective of the "respect" / "protect" / "enforce" model which is
fine for business enterprises and for states and for the relationships
between them, but which in my view is not at all adequate for an entity
like ICANN.

> > After all, the proper way to view human rights is to view them as
> > having higher precedence than all other laws and rights.
> 
> Agree
> 
> > This must be looked at in the context of ICANN being under US
> > jurisdiction and the interpretation of many fundamental rights by
> > US courts being so much worse than e.g. the work of the UN human
> > rights rapporteurs -- especially when human rights of people are
> > concerned who are neither citizens nor residents of the US.
> 
> Agree, that is why the commitment to respect human rights so
> important, and the commitment to develop and framework for that in the
> interim bylaw.
> 
> So I think we want the same, and I think this bylaw will help us get
> there.

I now agree that in regard to this particular concern which I
highlighted in my first posting in this thread, the proposed "human
rights bylaw" should indeed "help us get there" -- at least to the
extent that anything in the bylaws can help us get there.

Greetings,
Norbert