[governance] Statement by IGC supporting rights and principles

Thu Sep 10 18:05:57 EDT 2009

Paul and all,

  Nicely and with some depth, articulated here Paul.  

  Lets hope that the majority of the IGC recognizes what you have
so kindly outlined and can recognize that the rights of individuals
over groups, but our good friend Milton may as he has recently,
not so kindly recognize same.  But hope springs eternal! >:)

  Like you, as for me upholding human rights especially the rights
of individuals has been my sworn duty all of my adult life.  Where
I find such being obscured, I shall speak out firmly.  Where I find
same being thwarted, I shall call those whom are responsible out.
Where there is little if any doubt of same being violated I have taken
up arms and sought to smite them, and will do so if necessary and
advantagious again!

-----Original Message-----
>From: Paul Lehto <lehto.paul at gmail.com>
>Sent: Sep 9, 2009 11:37 AM
>To: governance at lists.cpsr.org, Lisa Horner <lisa at global-partners.co.uk>
>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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>
>
>-- 
>Paul R Lehto, J.D.
>P.O. Box #1
>Ishpeming, MI  49849
>lehto.paul at gmail.com
>906-204-4026
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