[governance] Statement by IGC supporting rights and principles
Paul Lehto
lehto.paul at gmail.com
Fri Sep 11 10:11:50 EDT 2009
Every right has a core, the noncompliance with constitutes a violation
(a "negative" application). Similarly, each right also has room for
"positive" application, both in building things to comply with those
rights as well as an area of growth outside the core that perhaps may
be in a gray area as to whether it is or is not protected by the
right. Those sworn to "uphold" various rights ought to err on the
side of upholding (put positively) or compliance (put "negatively) in
this grey area.
Lisa relates a story about people being more willing to cooperate if
rights are put in the "positive" light rather than the "negative"
light about abstaining from violations of rights. If this is merely a
rhetorical difference then the result is the same. But personally, if
I were party to such a conversation it would cause me to wonder why in
the world there would be hesitation on anyone's part regarding the job
of abstaining from human rights violations, even though that's a
"negative" job. Do they seriously, in their heart of hearts, want to
be free to violate such rights, even if unintentionally? I would
think, rather, that they would have no such intent to violate anyone's
human rights and would welcome any input or assistance available such
as guidance in how not to UNintentionally violate or diminish the
rights.
In answer to Lisa's question below, yes, there can be a "positive"
"framework" for working on rights issues, but if, as seems to be a
serious risk in both the text as is as well as the situation on the
ground described by Lisa, there is some resistance to full awareness
and/or discussion of refraining from violations of the rights, in
favor of some "positive" approach, this seems very likely to result in
a situation where "positive" work is accomplished on the margins
whilst violations occur at the core of the rights, from time to time.
Such a scenario, with resistance to discussion of rights violations
because they are "negative" actually results in a scenario where
rights only apply when public servants or officials WISH them to apply
-- for that is when they will be happy to work with a "positive"
approach. Whenever those same public servants or officials are engaged
in conduct that violates the rights, they will bristle at the
"negative" approach. This is not good for rights.
With rights, as with all VALUABLE things, they are greatly subject to
violation, and one must be prepared to defend them vigorously, even if
with some diplomacy, or else they will be lost as surely as one's
purse or wallet on the subway or train.
I see my role (and suggest it ought to be everyone's but everyone's
free to do as they see fit) as upholding the rights, without
compromise, because compromise of a right is nothing other than
violation of the same right (unless a right of equal or greater
stature is truly in conflict). Example: Torture every other day
instead of every day is just a continuing violation, not a good type
of compromise. For the above reasons, the statement falls short of a
full defense of those rights so I would dissent in part. That being
said, I believe everyone's heart is in the right place, but the text
is not fully in the right place, and I believe that no one is free to
advocate anything less than the full scope of human rights, least of
all any public servants or officials, whose primary reason for
existing is to protect and effectuate those rights. They should be
happy to do their job, not resistant or uncomfortable about it.
I can't imagine a police officer being uncomfortable about the
"negative" aspects of their job in restraining or stopping
criminal law-based rights violations, so why should it be different
with other human rights?
Paul Lehto, Juris Doctor
On 9/10/09, Lisa Horner <lisa at global-partners.co.uk> wrote:
> Hi Paul
>
> Whilst human rights are legally binding and inviolable, I do think that
> the rights "framework" of treaties, covenants and jurisprudence that has
> built up over the past 60 years can be presented and used as a
> "positive" tool for making decisions and influencing policy, rather than
> simply being a case of "negative" compliance. Many people that I've
> spoken to recently in the government and private sectors have said that
> they're much more willing to engage with human rights compliance issues
> when presented in this more positive light. I think coming at it from
> both directions is important, balancing emphasis on the legally binding
> and inviolability of human rights with discussions of how human rights
> can actually help policy makers to make sound and fair decisions. For
> example, we don't need to start from scratch in discussing how to
> balance the public interest with individual interest on the internet, as
> it's already all there in the international human rights framework
> (which is of course also legally binding).
>
> People who were concerned that the legally binding, fundamental aspect
> of human rights didn't come out strongly enough in the first draft of
> the statement have indicated that they're now happy with subsequent
> drafts. So, as it's late in the day now and we have to move for
> consensus, I hope you don't mind if we leave the statement as it is for
> now. We can of course continue this discussion on the list.
>
> All the best,
> Lisa
>
>
>
> -----Original Message-----
> From: Paul Lehto [mailto:lehto.paul at gmail.com]
> Sent: 09 September 2009 18:27
> To: governance at lists.cpsr.org; Lisa Horner
> Subject: Re: [governance] Statement by IGC supporting rights and
> principles
>
> Yes, the "legally binding" frame is indeed inserted in the latest
> draft, you're correct, but nearly all of the other words I pointed as
> problematic because they suggest or infer optional-ity still remain in
> the latest draft. I'm suggesting a fix, if you're interested, that one
> can apply for themselves, in the last paragraph of this short reply.
> I know that the drafters of this statement "get it", but documents are
> best interpreted for the raw text they contain (in the abstract), and
> if, in a manner of speaking, "binding human rights" lack the modest
> power to revise the wording of the other phrases in the statement that
> still remain unchanged, then one might infer that they're not really
> binding, they're more like "standards" "guidelines" and such that can
> be freely ignored where deemed desirable. (and these latter terms are
> still used in the statement, and they sound like optional concepts to
> me, like informal "rules of thumb").
>
> Even the term in the latest draft "gives the required attention to the
> human rights framework" is easily avoided by reasoning that the
> "attention due" in this case is precisely nothing. (Though I very
> highly suspect that's not at all the intent of the drafters)
>
> If you see my point, then I suppose anyone can take the "binding"
> terms from the UN Declaration of Human Rights, for example, and use
> them as a test on the other phrases in the document to see if they all
> measure up. These are words like "inalienable" "nonderogable"
> "inviolable", and so on. This constellation of words or concepts will
> help to rein in the remaining loose inferences that are available to
> someone not eager to apply human rights and result in a strong,
> tightly knit document.
>
> These loose inferences, not one of them a part of the drafter's
> intent, are what the opponent lawyers of human rights in some
> particular context will seize on as ambiguities or holes or escape
> hatches for what you are actually, I think, wishing to COMMAND (in the
> name of the law, of course).
>
> Paul Lehto, Juris Doctor
> On 9/9/09, Lisa Horner <lisa at global-partners.co.uk> wrote:
>> 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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>>> The message was checked by ESET NOD32 Antivirus.
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>>> ____________________________________________________________
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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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>
>
> --
> Paul R Lehto, J.D.
> P.O. Box #1
> Ishpeming, MI 49849
> lehto.paul at gmail.com
> 906-204-4026
> ____________________________________________________________
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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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