[governance] Statement by IGC supporting rights and principles

Wed Sep 9 12:37:58 EDT 2009

In the draft IGC statement below, it refers to the "human rights
*framework*" (emphasis mine) and then characterizes this framework
with words and phrases like "internationally accepted set of
standards" and "has practical as well as ethical value", constitutes
"guidelines" or "tools" and, in a prior paragraph, refers to
"opportunities to uphold" human rights in certain areas being "vital."

All of these phrases understate the actual binding status of human
rights, even while appearing to stress its "vital" importance (a word
that, unfortunately, almost any lobbyist on any issue no matter how
mundane will often attempt to claim). In general, it is much stronger
to be urging the enforcement and upholding of current law (the case
with human rights) because there is a duty to uphold it, than it is to
be urging the adoption of a new law or the application of a "standard"
to a new issue, because those are optional or at the discretion of the
person or entity being urged to take appropriate action.

The true status of international human rights is more as follows:

(1) Anything less than rigorous and liberal interpretation of the
rights and principles ultimately means that national or global society
goes off course, because they've either ignored or understated their
most important rights and principles, instead of vindicating and
respecting them at all times.   Ignoring rights and principles, even
if unitentional and even if only in part, is ultimately deadly, and
often deadly quite soon.

(2) When these rights take the form of constitutional law, as they do
in the USA in which treaty obligations are higher federal
constitutional law, they are supreme law three separate ways: (1) as
federal law, under the Supremacy clause of the US Constitution higher
than state law, (2) as constitutional law, in corporated by reference
into the Constitution, and (3) as international law, recognized as
supreme by the US Constitution itself, expreslly in the case of treaty
ratification, and even without treaty ratification where core human
rights amounting to war crimes are involved (see Justice Jackson's
opening statement at Nuremberg, stating the principles equally
applicable to the victors in WWII as they were to the Germans).

(3) Human rights and their necessary correlative principles are
nothing less than existing and binding LAW that almost all the
countries of the world have even specifically consented to, via treaty
ratification procedures.  Nobody is free to ignore them.  Nobody is
free to treat actual or alleged violations of human rights as if they
were optional "opportunities" to behave correctly.

(4) In the context of a relatively new technology, new contexts for
issues do arise, but it is the same old rights and principles that are
applied in the new context, so as to vindicate the underlying
principles, even if the doctrine ends up changing to accomodate the
new context.

(5) In light of the above, the "opportunities" "to uphold" are in fact
binding legal requirements to uphold.  "Uphold" is often a word used
in oaths, and it implies not only compliance with a constitutional
scheme but more than that:  It obliges the person taking the oath to a
"holding up" -- in veneration -- of the binding principles, just as a
trustee would be expected to do, who holds and exercises rights on
behalf of another (We the People).  Upholding rights means giving them
wide sway out of respect, not simply lawyering it to death in order to
narrow or eliminate its effects, while all the while claiming to
respect the rights.  If this latter sense is the intent of the phrase
"opportunities to uphold" then it would be ok, IMHO, provided it is
joined with a stronger statement that makes clear that compliance with
the law is not an option, it's a binding requirement of law.

(6) FWIW, treaty signature is not always required even though it
exists in the case of human rights generally speaking. In the case of
the most fundamental rights like anti-slavery, and the prohibitions on
torture, mistreatment of prisoners and on genocide, the international
law prohibiting these is binding even without treaty ratification,
under the jus cogens principles of international law (one of the bases
of war crimes tribunals, to which failure to ratify a treaty is no
defense).  The alleged fact, for example, that one was ordered to
violate these rights is no defense to a charge for their violation.
(See Nuremberg War Crimes Tribunal, for example, in which the Chief
Justice Jackson there also specifically states that these principles
apply just as much to the victorious countries in WWII as they did to
the Germans).

As always, the violation of a right does not mean that the right
doesn't exist.  Some may detect violations in the area of war crimes
in recent US history.  No amount of violations will make the right go
away, even if violated at the highest levels. After all, especially in
the area of war crimes, one often sees an entire nation's apparatus
perverted to accomplish rights denials of the most atrocious kinds.
If the violations themselves did anything to diminish the actual
rights in question, the Nazis would have gotten off scot free at
Nuremberg in addition to having a "nice" run of it for approaching two
decades.

In general, I favor not "lobbying" people to apply human rights LAWS,
but rather to urge them to do their **duty**, do their job, and uphold
their oaths (if applicable) by following human rights laws, upholding
them vigorously, and giving them a  reasonably expansive
interpretation whenever a range of possible meanings exist.

Paul Lehto, Juris Doctor

On 9/2/09, Lisa Horner <lisa at global-partners.co.uk> wrote:
> Hi all
>
> I've pasted a statement below for discussion.  I've tried to explain (a) why
> it's important to consider rights and principles and (b) what we think
> should be done.  Over to everyone else for comments and edits.
>
> Anja - thanks for your thoughts.  In response to yours and Ginger's comments
> I only included the suggestion of offering to work with people to ensure
> that rights issues are addressed.  In relation to your last comment about
> being more explicit about violations and commitments, I personally think we
> should try and present the rights and principles discussion in positive
> rather than negative terms in a statement like this.  Whilst we should of
> course be clear on what standards are and what constitutes violation of
> them, I think we want to encourage widespread participation and engagement
> with the issues rather than scare people off?  Rather than including it in
> this statement, maybe we could do something else, for example start
> compiling a list of violations to circulate at the IGF or to include as
> guidance for session organizers?
>
> As usual, please edit directly or send through explicit suggestions for
> changes rather than more general opinion which can be more difficult to
> incorporate into amendments.
>
> Does next Thursday 10th September sound ok as a deadline for this?
>
> All the best,
> Lisa
>
> --------------------
>
> DRAFT STATEMENT
>
> The following statement is submitted on behalf of the Civil Society Internet
> Governance Caucus.
>
> The Caucus requests that the human rights are given adequate attention in
> the programme for IGF-4 in Egypt.  The WSIS Declaration and Tunis Agenda
> reaffirmed the importance of human rights in the information society, but
> human rights and associated principles have received very little attention
> at the IGF.  This is problematic as:
> •	Fundamental human rights including freedom of expression and privacy are
> threatened by current internet governance processes and practice.
> •	The internet presents new opportunities for upholding and advancing human
> rights, for example through enhancing access to knowledge and resources. It
> is vital that we build on and enhance these opportunities.
> •	The human rights framework is an internationally accepted set of standards
> that has practical as well as ethical value.  It contains guidelines on how
> to balance different rights against each other to preserve individual and
> public interest.  This makes it a useful tool for addressing internet
> governance issues, such as how to balance freedom of expression with
> concerns for security on the internet.  The framework also considers both
> rights and responsibilities of different stakeholders.
>
> The Internet Governance Caucus calls for human rights issues to be addressed
> during the planning and implementation of all IGF sessions.  This should
> include explicit consideration of how policies affect fundamental rights,
> and the development of positive policy principles to build an open and
> accessible internet for all.  The Caucus would like to offer assistance to
> the organisers of the main plenary sessions to do this, and would like to
> support all stakeholders through providing access to relevant guidelines and
> experts.
>
> --------------------------------------------------------
> -----Original Message-----
> From: Anja Kovacs [mailto:anja at cis-india.org]
> Sent: 01 September 2009 11:49
> To: governance
> Subject: Re: [governance] Statement by IGC supporting rights and principles
>
> Dear all,
>
> Sorry for responding to this belatedly - I was travelling last week with
> only sporadic, very slow, Internet access.
>
> Thanks Lisa, for these excellent suggestions, and for offering to draft
> a text.  There were just two things I wanted to note.  In terms of
> strategy, I have been wondering whether it would perhaps be wiser not to
> include in the statement a request for space in the emerging issues
> session to reflect on the meaning of "rights and principles".  Why,
> after all, discuss the meaning of rights and principles in the last
> session, if we have already integrated rights and principles and their
> implications in IG practice in all preceding ones?  If wider support for
> putting the rights debate back on the official IGF agenda does emerge
> during the planning meeting, this particular suggestion would make it
> too easy for those opposing such attention to ensure that this
> discussion is relegated once again to this one session at the very end
> of the IGF.  If, at the planning meeting, we get the sense that a
> discussion in the emerging issues sessions is probably the best we can
> get, we can always still make this suggestion right there and then,
> rather than including it in a written statement already now.
>
> I have also been wondering whether it is time that we start using
> somewhat stronger language and explicitly remind governments not only of
> the international commitments to human rights that they have made, but
> also of the fact that not actively working to uphold such commitments
> effectively amounts to condoning rights violations - or am I being too
> impatient here?  Such a phrasing would of course implicate a country
> like France as much as it would, say, China.
>
> Cheers,
> Anja
>
>
>
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-- 
Paul R Lehto, J.D.
P.O. Box #1
Ishpeming, MI  49849
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906-204-4026
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