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

[Max Senges]

hi milton

some of us who are doing research on Internet Rights and a rights based
approach to IG plan to meet 25 Aug 9 am PST = 18 pm Swiss/Austria (before
our monthly IBR skype conf-call). the idea is to share what our research
interesests are, to find synergies and possibly align efforts. you are very
welcome to join

best
max

On Sat, Aug 16, 2008 at 10:56 AM, Milton L Mueller <mueller at syr.edu> wrote:

> 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.
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-- 
-------------------------------------------------
"It is not the critic who counts, not the man who points out how the strong
man stumbled, or where the doer of deeds could have done better. The credit
belongs to the man who is actually in the arena; whose face is marred by the
dust and sweat and blood; who strives valiantly; who errs and comes short
again and again; who knows the great enthusiasms, the great devotions and
spends himself in a worthy cause; ... so that his place shall never be with
those cold and timid souls who know neither victory or defeat."
- THEODORE ROOSEVELT
(Paris Sorbonne,1910)

-------------------------------------------------
Dr. Max Senges
Stanford Post-Doc Visiting Scholar
UOC Research Associate
Freelance Consultant

98 Loyola Ave., Menlo Park, California 94025

US-Phone: (001) 650 714 9826

www.maxsenges.com
www.knowledgeentrepreneur.com
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