[governance] Inputs for synthesis paper

[Parminder]

Tapani

> 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).


There is no doubt that negative and positive rights need different analysis,
that if why we use these categories. As for 'who pays' I never thought that
there is ever any doubt about it - positive rights are claims against the
collective of the political community which in most cases is the nation
state, and that's who pays. This is always the case, I know of no other form
of positive rights. 

> 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.

It covers 1-3 of your list and a little more as well. The meaning in which
the term is used is quite well-established to be generally understood in the
right meaning. There are many scholarly works available on the subject but I
am referring an article on the concept of collective rights in practice in
India. (pl see http://www.hrdc.net/sahrdc/hrfeatures/HRF36.htm ) 

We use it in the term in its generally understood meaning in the rights
discourse. 

> 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.

It is used in the positive rights sense - in equivalence to right to
education. If it makes it clear I can change it to 'right to the Internet' -
that makes it clearer. 


> 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.

When we say " It may also be
> > useful to explore if and whether positive and collective rights are
> > meaningful in relation to the Internet" We are being as exploratory as
one can. Beyond this, it will be positively doubting it. 

In particular I fear the possibility that
> "cultural rights" could be used to restrict freedom of expression.
>

Yes, we all fear so. Some fears are associated with all rights. No text can
address all concerns completely. We have already spoken more strongly about
FoE earlier in the statement. 

Parminder 


> -----Original Message-----
> From: Tapani Tarvainen [mailto:tapani.tarvainen at effi.org]
> Sent: Sunday, September 07, 2008 12:43 PM
> To: governance at lists.cpsr.org
> Subject: Re: [governance] Inputs for synthesis paper
> 
> 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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