[governance] Inputs for synthesis paper

Mon Sep 8 12:32:20 EDT 2008

Robin,

'Collective rights' is obviously an analytical category and not a right as
such. So when I speak of collective rights I am clearly meaning specific
rights like rights of indigenous people, linguistic rights, cultural rights,
minority rights, right to development etc.

To say that one doesn't believe in collective rights one must be able to say
that one doesn't believe in the above rights. That's a simple and direct
derivation. Are you saying so? 

One cannot say, no, I 'do' believe in all or some of the rights listed above
but not in collective rights as a category. 

Negative, positive and collective rights are categories of representation
and analysis, and in fact help to underscore that different sets of rights
may need different justifications and analysis (something which Tapani asked
to be clarified).

In fact I am fine if one is ready to accept a long list of all these rights,
and not mention the terms negative, positive and collective rights. That
merely would mean one thinks all these rights, along with those that may be
considered negative and positive rights are in the same category, and need
not be differentiated. I could in fact be happier with such a position. 

I quote what the IGC statement of July 19, 2005 to the WSIS process said
about rights. 

"Among priority public policy issues are.."... Addressing human rights as a
cross-cutting principle in relation to evolution and use of the Internet.
Nothing in Internet governance negotiations must impair, restrict, or
contradict universally agreed human rights."

Most of the rights I mention above are universally agreed human rights. Many
positive rights and collective rights are certainly among what would
constitute as the category of universally agreed human rights as meant in
the above statement. 

So while IGC at one time insisted that 'Nothing in Internet governance
negotiations must impair, restrict, or contradict universally agreed human
rights', and now if it issues a statement that 'impair, restrict, or
contradict universally agreed human rights' I for one, as an IGC member,
would certainly not want to be a party to it.

Parminder 

  _____  

From: Robin Gross [mailto:robin at ipjustice.org] 
Sent: Monday, September 08, 2008 7:38 PM
To: governance at lists.cpsr.org; Milton L Mueller
Cc: Parminder
Subject: Re: [governance] Inputs for synthesis paper

I haven't been able to keep up on this discussion as I would have liked to,
but I wanted to weigh in (hopefully not too late and off topic).

I also have deep concerns about promoting "collective" rights because I see
them as subordinating individual rights in potentially dangerous ways
(although no harm is intended).  It is the sovereign individual that is
ultimately responsible.  Individuals acting together can be collectives, but
it always breaks down to the individual in the end.

Robin

On Sep 5, 2008, at 6:43 AM, Milton L Mueller wrote:

  _____  

From: Parminder [mailto:parminder at itforchange.net] 

Thanks Milton for this engagement. While, as you would expect, I have a lot
of issues with your amendments, this process of engagement and deliberation
is very useful.  

Agreed. 

It is important to recognize that there are two important and different
contestations here. One, whether there is at all a category of positive and
collective rights in any case whatsoever. 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 invite
members' comments on this statement. Accordingly, I don't think an IGC
statement should go out casting doubts on the very validity of these
categories of rights. I would therefore want all corresponding parts of the
statement removed. 

But there is no doubt about the fact that it is contested. And it is not
just me, three or four others have taken up this discussion more or less
from my point of view. Based on the list dialogue this would look like
almost a 50-50 division, but whether this is a "small minority" or a
significant minority doesn't matter, it is contested, and if the statement
doesn't reflect that I will opt out of it and issue a separate statement
contesting the legitimacy of your statement as an expression of IGC. 

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) and right to cultural expression or an
Internet in ones own language (a collective right). I agree that there may
not be enough consensus in this group at present to assert these rights, and
we may only speak of exploring them, and debating the pros and cons.
Accordingly, I am for mentioning the language of 'wanting to explore' with
regard to these rights.  

I did not delete that language, in regard to RTDevelopment, I think it is
perfectly acceptable to "explore" contested issues.  

"The openness and diversity of the internet are underpinned by widely
recognized (but still imperfectly enforced) basic human rights: the
individual right to freedom of expression and to privacy. 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." 

This proposed amendment does not make it clear that there are significant
participants in CS who contest the positive and collectivist notions, so I
can't accept it.

"We recognize that while it is relatively easy to articulate and claim
"rights" it is much more difficult to implement and enforce them. We also
recognize that rights claims can sometimes conflict or compete with each
other. For example, a claim that there is a "right to Internet access" may
imply an obligation on states to fund and provide such access, but it is
likely that if states are responsible for supplying internet access that
there will also be strong pressures on them to exert controls over what
content users can access using public funds and facilities.  There can also
be uncertainty about the proper application of a rights claim to a factual
situation. The change in the technical methods of communication often
undermines pre-existing understandings of how to apply legal categories. "

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.  

So people who believe in a positive right to Internet access cannot be
contradicted, but those who do not can be? I think the only thing you need
to do is replace "it is likely that if states are responsible" with "some
fear that if states are responsible."  That makes it clear that there is
disagreement. which there is.

I however find the last two sentences - which I know you state in terms of
meaningfulness of universal access - very interesting in terms of IPR in
digital space. But I discuss my issues with the IPR paragraph in a separate
email. 

The last two sentences were meant to be general, not specific to universal
access or IPRs -- the principle applies to all kinds of issues, especially
privacy and identity.  

I also have problem with the new opening para that you propose.

"The Tunis Agenda (para. 42) invoked human rights when it reaffirmed a
global "commitment to the freedom to seek, receive, impart and use
information" and affirmed that "measures undertaken to ensure Internet
stability and security, to fight cybercrime and to counter spam, must
protect and respect the provisions for privacy and freedom of expression as
contained in the relevant parts of the Universal Declaration of Human Rights
and the Geneva Declaration of Principles." However, little follow up work
has been done to enact these commitments to basic human rights in Internet
governance."

If one mentions rights in the IG arena it is by default read as FoE and
privacy rights. While these are basic and very important rights, our effort
is to explore the rights terrain much further. As argued in my earlier email
the possibility that a broad rights agenda may at ant time be globally
accepted as a good basis for IG related policy discussions also lies in
making the rights discourse broader,  

This is a tactical difference mainly, but also one of principle. You start
with the area where there is the most common ground. The point about citing
the Tunis Agenda is that governments have already committed themselves to
it, I think the line about balancing security concerns with other rights is
especially important. Even on your own expansive terms, it would be wiser to
start with the traditional rights and then move gradually into how far it
can be taken. 

 including concerns of what I call as the vast majority of people, which go
beyond these two rights.  

Just for the record, I do not accept your claim to speak for the vast
majority of people. 

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