[governance] [Bill-of-Rights] Rights in IG research

[Milton L Mueller]

Lisa,
Thanks for your very useful and comprehensive response, I am a bit
pressed for time and will try to review it carefully and respond soon. 
Will you be at the IGF consultation in Geneva? A good time perhaps to
take this up.

> -----Original Message-----
> From: Lisa Horner [mailto:lisa at global-partners.co.uk]
> Sent: Thursday, August 14, 2008 12:10 PM
> To: Milton L Mueller; governance at lists.cpsr.org
> Subject: RE: [governance] [Bill-of-Rights] Rights in IG research
> 
> Hi Milton
> 
> I'm not an expert in these issues - merely hoping that those who are
get
> more involved.  You ask really important questions, and more research
> and policy work in this area could be really productive.
> 
> My thoughts in response to your questions below...
> 
> -----Original Message-----
> From: Milton L Mueller [mailto:mueller at syr.edu]
> Sent: 13 August 2008 23:17
> To: governance at lists.cpsr.org; Lisa Horner
> Subject: RE: [governance] [Bill-of-Rights] Rights in IG research
> 
> Hi, Lisa:
> Some questions for you...
> 
> > -----Original Message-----
> > From: Lisa Horner [mailto:lisa at global-partners.co.uk]
> > I agree with Jaco that the existing institutions are already
> > in place to protect and interpret rights at various levels
> > from the sub-national to international.  IMHO, the challenge
> > is to bring these institutions up to standard so that they're
> > capable of doing this job in relation to new and emerging
> > issues concerning internet communications.
> 
> How would you relate to the fact that a clearly defined right to
> privacy, articulated in both national laws and in international norms
> and instruments, is abrogated by the ICANN Whois obligation? Two
prongs
> to this question. First, how and why do you think that happened?
Second,
> why is there so much interest in general declarations of rights amogn
> civil society and so little interest and involvement in the actual
ICANN
> processes that could affect how that right is translated into reality
in
> the context of the Internet domain name system?
> 
> In answer to the first question, as I understand it, the Whois
> negotiations have been dominated by the corporate sector, with IP
> lawyers to defend trademark interests.  Put crudely, money and power
led
> to IP rights trumping privacy rights.  Also exactly what you
highlighted
> before - a lack of understanding of rights and how to balance them,
and
> the global IP regime's interpretation of IP rights in favour of
> corporate rights holders.
> 
> I think your second question also in part answers the first.  A lack
of
> involvement in ICANN processes is the result of a lack of
understanding
> about said processes and the issues they address, coupled with (a
> perception of?) their technical nature and intangibility.  I know this
> lack of participation is something that you and others are trying to
> address, and I applaud your efforts.  I also understand it to be the
> result of ICANN structures of participation, proposals for the reform
of
> which I think have been hotly debated on this list.  I've been meaning
> to try and engage more for a while, but as always, time is an issue.
> But if you think participation from the likes of me would be useful,
> tell me when and how and I'll do my best.
> 
> >  I agree that
> > constitutional amendments are unlikely in many countries, but
> > that doesn't prevent communications policy and practice
> > concerning issues that might seem unrelated to rights
> > (interoperability, commercial net neutrality...) from being
> > in line with human rights standards. Part of the power of the
> > international rights system stems from the moral obligations
> > it places on people to uphold rights - we might not always
> > need legal enforcement.
> 
> This is interesting. You are talking about political pressure by human
> rights advocates, are you not? In this case what really matters is not
> the articulation of the right in an international legal text, but the
> willingness of civil society activists to mobilize around the issue.
> 
> It's not just pressure from civil society - it's a process of building
> norms and principles amongst all 'stakeholders' (including, as Karl
> pointed out, people in general) around shared values.  In terms of
human
> rights - an incomplete and difficult process, but one that has
> progressed over the past 60 years.  'Civil society' has a huge role to
> play, as do inter-governmental organizations who directly or
indirectly
> work on rights issues (in other sectors the ILO, WHO; in this sector
> UNESCO, ITU...IGF).  Law also contributes to the process, and the UN
> human rights institutions, regional courts and national courts have
all
> contributed to the evolving understanding of what human rights
> principles mean in theory and in practice.  People, through using the
> internet and engaging or not engaging in policy processes, are also
> contributing.  I think an important dynamic to watch is the emergence
of
> corporate social responsibility principles and policies.  Adhering to
> positive values-based principles can make good business sense.
> 
> If the question is whether rights are important if civil society can
be
> mobilized around issues without their codification in international
law,
> my response is that, if the issue is linked to existing human rights
> standards, reference to rights will lend the mobilization moral
strength
> and, in some instances, legal weight.
> 
> A secondary question: You say "we might not always need legal
> enforcement." This assumes that there actually _is_ legal enforcement
of
> free expression rights in the international context. Here I plead
> ignorance but hope you can supply me with information. Can you provide
> an example of a case (or more than one case) in which UN institutions,
> acting on the basis of international human rights "law" or
declarations,
> have put an end to an act of censorship or some other form of
> suppression of free speech in some country? If I am a blogger in China
> or Burma or the U.S. or Venezuela and my rights to free expression are
> violated can I petition the UN, or initiate litigation based on
> international rights and get that changed?
> 
> There are mechanisms for enforcing human rights at the UN, regional
and
> national levels.  Citizens in states who have signed the Optional
> Protocol to the ICCPR can take complaints against the state to the
Human
> Rights Commission.  Whilst the commission can't hand down binding
> decisions, it can rule whether a violation of rights has occurred and
> make recommendations to the state in question.  The European Court can
> take citizens' cases once all national options have been exhausted,
and
> the Inter-American Commission can refer individuals' complaints to the
> Inter-American Court.
> 
> Free expression cases have been taken by all of these bodies, with
> rulings against the state in many cases. Eg. Conviction on grounds of
> state security of an individual participating in a trade union
protests
> and releasing statements critical of the government in South Korea was
> deemed by the human rights commission to be in violation of freedom of
> expression.  The Inter-American Court ruled against Chile's banning of
> Scorcese's Last Temptation of Christ, prompting reform of Chile's film
> censorship/classification regime.
> 
> Bloggers in China and Burma would have very few mechanisms for
redress,
> having not ratified the ICCPR.  Venezuela is in the jurisdiction of
the
> Inter-American Court and has ratified the ICCPR and the optional
> protocol.  Surely the first amendment effectively provides protections
> for US bloggers?
> 
> Obviously using these mechanisms isn't easy or efficient, but the main
> point is that they are there.  The next thing to do is to work out how
> they can be improved and used better.  And, as we've already
discussed,
> everything is complicated further by the extra-territorial nature of
the
> internet and the communications it hosts.  I'm not an expert in this
> area and I don't know of any specific free expression-internet related
> cases in the international or national rights courts - can anyone else
> shed any light here?  Strategic litigation in this area could be very
> interesting. On a related note, I would support any effort to get the
UN
> Special Rapporteur for Freedom of Expression involved in the IGF.
> 
> Going back to the earlier points around norms and institutions - in my
> opinion the fact that the US and many other countries haven't ratified
> the optional protocol of the ICPPR doesn't render ratification of the
> covenant itself toothless.  The moral weight of human rights shouldn't
> be underestimated - which I assume is why any reference to them in
> official IGF circles is controversial. All the more reason to work
with
> the rights system rather than shy away from it in my opinion.
> 
> > I was interested in an idea put forward by the WSIS human
> > rights caucus about the creation of an internet governance
> > institution that would be responsible for monitoring
> > governance policy and processes and assessing whether they
> > uphold or undermine minimum rights standards.  Does anyone
> > know if there was any more work done on that front?
> 
> Of course not, if by "additional work" you mean a commitment was made
by
> the UN system and its member states to invest resources in it and
> execute it. The problem is that there is no consensus among states on
> what rights exist and even if there was consensus in principle states
> would always disagree that they were violating them once so accused.
> 
> No, I didn't mean any work by governments or inter-governmental
> organizations. I meant by the proposers of the idea in the first place
-
> people who were in the HRC.  There is a degree of agreement on what
> rights exist amongst states who have ratified the covenants of the
> international bill of rights.  There isn't agreement on what they mean
> in relation to internet-based communication, which is where a body
like
> this could be useful.  Of course getting agreement to set an official
> body up wouldn't happen overnight.  Just wondering if anyone's done
any
> thinking/action on how to start building an informal one with
> sympathetic stakeholders.  I guess the Centre for Democracy and
> Technology/Berkman/BSR principles are taking a step in this kind of
> direction.
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance