[governance] Inputs for synthesis paper

[Tapani Tarvainen]

On Fri, Sep 05, 2008 at 01:12:28PM +0530, Parminder (parminder at itforchange.net) wrote:


> My personal view is that it is a very small minority among the IGC
> membership that really contests the very validity of the category of
> positive and collective rights.

I'm not sure what "validity" means here, but I find the term
"positive right" useful and meaningful. That does not imply
endorsement of such rights, but of the term - indeed, I find
it useful primarily in indicating that some rights need more or 
different justification and analysis than others (like, who pays).

I have no fundamental objection to positive rights, as long
as their meaning is clear enough, and in particular that
it is made explicit whether a right is intended to be
positive or negative.

As for collective rights, my main gripe is that the meaning
is unclear. The term has been used for, at least,
(1) rights that are accorded to individuals because of their
membership in a certain group (e.g., age limits on right to education).
(2) rights that are meaningful only for (sufficiently large)
groups (right to use one's language makes no sense if nobody
else speaks or understands it).
(3) rights individuals are _deprived_ of because of group
membership, or, groups' (power holders') right to deprive
their members of rights these would otherwise have had
(say, restricting womens' rights on religious grounds).
(4) legal rights explicitly assigned to legal entities
other than individuals.

I'm sure there are other meanings, too.
Note, however, that the first two can be treated as individual
rights without any loss of substance - only the justification
is collective there.

So, I think one should be clearer what exactly is meant
when a right is called collective.

> The second contestation is about whether there are some already accepted
> extensions of positive and collective rights to the Internet - right to
> access internet (positive right)

The (to me) obvious meaning of "right to access Internet" would not
be a positive but a negative right - but it can easily be either:
positive if it means state (or someone else) is obligated to
provide the (financial) means for it, negative if it is understood
like freedom of expression, that nobody may prevent you from accessing 
the Internet if you can afford it.
Both could well be argued for, but the meaning should be made clear.

> and right to cultural expression or an
> Internet in ones own language (a collective right).

I'm not sure why these should be called collective rights.
Obviously both culture and language are collective in the
sense of (2) above, but, as noted, such rights effectively
belong to individuals anyway.
If the intended implication is (3), i.e., that cultural
reasons could allow overriding some individual rights,
that should be made clear.

> "[...] It may also be
> useful to explore if and whether positive and collective rights are
> meaningful in relation to the Internet - for instance a right to Internet
> access, or a right of cultural expression - including the right to have an
> Internet in ones own language, which can inform the important IGF thematic
> area of cultural diversity."

That has rather too many hidden or ambiguous meanings for my liking.

First, it sounds like "meaningful" is used as an endorsement;
obviously the term "positive right" is meaningful, but that
doesn't mean any positive right is good or useful.

Second, the examples given imply or hint things about those rights
that are not at all obvious, like whether right to Internet access
should be positive or negative (cf. next point below), and what
"collective" means. In particular I fear the possibility that
"cultural rights" could be used to restrict freedom of expression.
 
> "[...] For example, a claim that there is a "right to Internet access" may
> imply an obligation on states to fund and provide such access [...]"

> This para clearly makes out a strong case against 'right to the Internet'
> and is obviously not acceptable to those who speak for it. I would delete
> the whole para. 

As noted, you were in effect adding the opposite point above.

Whether "right to Internet access" should be interpreted as
positive or negative right is important, and should be made
clear, not just implied with examples.
Or, if no consensus can be found, it can be left open, but
then neither position should be endorsed or hinted at with
hard-to-decipher wording.

-- 
Tapani Tarvainen
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