[governance] Statement by IGC supporting rights and principles

[Wolfgang Benedek]

Lisa,

I'm fine, also with the latest version, fearing only it is getting too
complex to have much impact.
See You soon,

Wolfgang


Am 09.09.09 18:56 schrieb "Lisa Horner" unter <lisa at global-partners.co.uk>:

> Thanks for your detailed comments Paul - really useful and make sense.
> 
> Since that posting, we've come up with a new draft that emphasizes that
> rights are legally binding.  I hope it addresses your concerns.
> 
> Wolfgang - you said you didn't understand what we mean in the last
> sentence.  In my view, the idea would be to provide session organizers
> with access to information and experts in the IGC who can help them to
> consider the human rights dimensions of the issues that they are
> discussing.  Does that make sense?  I tried to incorporate the gist of
> your comments as best I could, given that you were working with an
> earlier version.
> 
> I've pasted a new draft (v5) below, incorporating the comments we've had
> today.
> 
> The deadline for comments is 0900 CET tomorrow, and I hope we're moving
> towards consensus...
> 
> Thanks,
> Lisa
> 
> --------------------
> 
> DRAFT STATEMENT (V5).
> 
>  The Caucus [and undersigned DCs] repeat their request that the
> programme for IGF-4 in Egypt gives the required attention to human
> rights.  The WSIS Declaration and Tunis Agenda reaffirmed the centrality
> of human rights in the information society, but human rights and
> associated principles have received too little attention at the IGF so
> far.  This is problematic as:
> 
> * Fundamental human rights such as the rights to freedom of
> expression, privacy, civic participation, education and the right to
> development are strongly threatened by actions and restrictive policies
> of a growing number of actors vis a vis the internet, including state
> and private actors at both national as well as global levels.
> * The internet presents new opportunities for upholding and
> advancing human rights, for example through enhancing access to
> knowledge and common resources. It is vital that we build on and enhance
> these opportunities.
> * International human rights, as contained in the Universal
> Declaration of Human Rights and confirmed by the core human rights
> treaties and other universal human rights instruments, are legally
> binding.  The growing role of information and communication technologies
> has not changed the legal obligation of states having ratified these
> instruments to respect, protect and implement the human rights of their
> citizens.
> * The human rights framework is an internationally agreed set of
> standards that has practical as well as ethical value.  It balances
> different rights against each other to preserve individual and public
> interest.  In addition to its legally binding implications, human rights
> are therefore a useful tool for addressing internet governance issues,
> such as how to deal with security concerns on the internet in compliance
> with the rights to freedom of expression and privacy.  Besides stating
> the obligations of states and governments, the human rights framework
> also allows us to derive the rights and responsibilities of other
> stakeholders.   
> 
> The Internet Governance Caucus [and undersigned DCs] call for the human
> rights dimension of all internet governance issues to be included in the
> planning and implementation of all IGF sessions, so that human rights
> are given the attention they deserve as cross-cutting issues.  This
> should include explicit consideration of how global, regional and
> national policies affect human rights, and the development of positive
> policy principles to build an open and accessible internet for all.  The
> Caucus [and undersigned DCs] 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: Paul Lehto [mailto:lehto.paul at gmail.com]
> Sent: 09 September 2009 17:38
> To: governance at lists.cpsr.org; Lisa Horner
> Subject: Re: [governance] Statement by IGC supporting rights and
> principles
> 
> 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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