Hi Ed,

be careful with language and categories: International Humanitarian Law regulates the conduct of armed conflicts (http://en.wikipedia.org/wiki/International_humanitarian_law). This goes back to the Hague Conventions of the 19th century and the foundation of the International Red Cross. Today it is discussed in the 1st (security) committee of the UNGA and the question is - raised also in the NATO Tallin Manual - whether the so-called four Geneva Conventions on Humanitarian Law are applicable for a(not yet defined) cyberwar.

This has only little to do with the issues under discussion in the 3rd (human rights) committee of the UNGA, where privacy, freedom of expression and other right laid down in the UDHR are discussed. ICANN has nothing to do with international humanitarian law as long as ICANN is not pulled into a cyberwar ;-((((


Wolfgang



-----Ursprüngliche Nachricht-----
Von: NCSG-Discuss im Auftrag von Edward Morris
Gesendet: Fr 30.01.2015 13:33
An: [log in to unmask]
Betreff: Re: [NCSG-Discuss] AW: [NCSG-Discuss] [Poll] reminder: Topics for discussion: NCSG - ICANN Board meeting Tuesday 9th February
 
Thanks Wolfgang. Very helpful.

Just a reminder that as we insert the lexicon of "human rights law" into the vernacular, as Wolfgang has suggested, we should couple it, where appropriate, with the phrase "international humanitarian law". Although IHL concerns primarily state based actors, the Tallinn Manual does impute some responsibility to third actors particularly with regards to cooperating with states. This is a fast developing area of legal competence and as we plan for the future it would be nice to have ICANN acknowledge it is bound by it.

Ed

Sent from my iPad

> On Jan 30, 2015, at 11:41 AM, Kleinwächter, Wolfgang <[log in to unmask]> wrote:
> 
> Hi,
> 
> the reference point for HR within ICANN are the Articles of Incorporation. Article 4 states: "4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations."
> https://www.icann.org/resources/pages/governance/articles-en
> 
> This Article 4 makes clear that ICANN does not "create" human rights but makes sure that its activities (including decisions in form of board or SO resolutions) are carried out "in conformity with relevant principles of international law and applicable international conventions". This includes conventions like the Convenent of political and civil rights from 1966 (http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx), but also other relevant treaties as the WIPO conventions etc. As Robin has argued in Frankfurt, ICANN (via its new gTLD program) was very careful not to violate existing trademark rules and IPR conventions. ICANN did not create "new" trademark rules but carried out its activities in conformity with existing IPR regulations. A similar approach around new programs (including new gTLDs) can be expected and organized with regard to conventions which cover HR issues.
> 
> One way to do this is that in the rationale of an adopted ICANN resolution on para. says "The Resolution is in conformity with existing international human rights conventions" (based on a doublcheck whether this is the case indeed). Such an approach/doublecheck would minimize the risk that ICANN (unintentionally) violates existing human rights. And it would avoid that ICANN is seen as a body which "creates" human rights.  
> 
> Wolfgang
> 
> 
> 
> 
> -----Ursprüngliche Nachricht-----
> Von: NCSG-Discuss im Auftrag von Sam Lanfranco
> Gesendet: Fr 30.01.2015 00:32
> An: [log in to unmask]
> Betreff: Re: [NCSG-Discuss] [Poll] reminder: Topics for discussion: NCSG - ICANN Board meeting Tuesday 9th February
> 
> As a short follow up to Jean-Jacques Subrenat's comments I would like to 
> make reference to the UN Office of the High Commissioner for Human 
> Rights (OHCHR) < http://www.ohchr.org> and its series of human rights 
> practical guides for civil society. The latest publication in that 
> series focuses on Civil Society Actors (CSAs) that are human rights 
> defenders (HRDs).
> 
> The Guides and work of the OHCHR present good working definitions of 
> civil society, civil society space, civil society actors etc. as a basis 
> for HR (and PI) dialogue, including framing the context for a free and 
> independent civil society, relevant international human rights standards 
> for freedoms of expression, association and peaceful assembly, and the 
> right to participate in public affairs.
> 
> Starting from this foundation it is easier to "drill down" into ICANN 
> policy and practice and ask the right questions, as a practical prelude 
> to helping ICANN to "do the right things" with respect to HR and PI.
> 
> Starting from this perspective also identifies operational areas where 
> Civil Society Organizations face serious HR/PI Internet ecosystem 
> challenges beyond ICANN's remit. Increasingly, beyond the scope of 
> ICANN's remit, there are challenges in areas where capacity building and 
> engagement are needed to protect human rights and the public interest on 
> the Internet. An example of this is where, contrary to the Universal 
> Declaration of Human Rights (UDHR), countries ban or prohibit 
> organizations from accepting foreign material support unless they are 
> registered with the government, and frequently subject to 
> de-registration without recourse.
> 
> Is the free use of gmail or FaceBook, hosted on a remote server, the 
> acceptance of foreign material support, leaving a CSA or HRD at the 
> mercy of government action?
> 
> Sam L, Chair, NPOC Policy Committee
> 
> 
>> On 29/01/2015 1:26 PM, Subrenat, Jean-Jacques wrote:
>> I appreciate Sam's analysis and support his suggestion of asking 3 questions. For the benefit of those who know everything about the Internet and ICANN, but slightly less about UDHR and related issues, I would suggest adding some words to help focus on the challenges at hand (IN BOLD BELOW):
>> 
>> First, using the UDHR as a preference point, where are the ICANN policy areas that impact on building, sustaining and protecting a just society? (WHAT ICANN POLICIES (AND NOT ONLY STATEMENTS) ADDRESS THE INTERESTS OF THE GENERAL INTERNET USER, AS DISTINCT FROM, SAY, THE INTERESTS OF THE DOMAIN NAME INDUSTRY?).
>> 
>> Second, on both the HR and PI fronts, what is ICANN's track record (key performance indicators?) with regard to building, sustaining and protecting a just society? (SOME EXAMPLES: ARE THE RIGHTS OF INTERNET USERS (PROTECTION OF PERSONAL DATA, PRIVACY, "RIGHT TO BE FORGOTTEN") ADEQUATELY PROTECTED BY THE DEFAULT SETTINGS USUALLY CHOSEN BY PROVIDERS OF SOFTWARE, APPLICATIONS AND HARDWARE?
>> 
>> Third, what are the lessons learned here with regard to corrective and future ICANN policy? AMONG THE MAIN REFERENCE TEXTS (UDHR, BUT MORE SPECIFICALLY COUNCIL OF EUROPE REPORT ON INTERNET RIGHTS), WHAT ARE THE ELEMENTS WHICH COULD BE ADAPTED TO ICANN?
>> 
>> Jean-Jacques.
>> 
>> ----- Mail original -----
>> De: "Sam Lanfranco" <[log in to unmask]>
>> À: [log in to unmask]
>> Envoyé: Jeudi 29 Janvier 2015 18:54:17
>> Objet: Re: [Poll] reminder: Topics for discussion: NCSG - ICANN Board meeting Tuesday 9th February
>> 
>> Approaching Public Interest and Human Rights within ICANN
>> 
>> From my experience elsewhere with regard to how NCSG might approach the issues of Public Interest (PI) and Human Rights (HR) with regard to ICANN, there are two levels of discourse. One is a global level discourse, involving Not-for-Profit and Civil Society sectors, and revolves around the core meanings of PI and HR. Those discussions have better structure with reference to HR since we have the Universal Declaration of Human Rights (UDHR) as a reference point and navigational beacon. One way of looking at UDHR is that it helps answer the question "What constitutes a just society?". For PI the discourse is more ragged and contentious since self-interests come into play. There is no single PI reference point, but the same question "What constitutes a just society?" can be a navigational beacon.
>> 
>> Our NCSG discourse about PI and HR in the context of ICANN and ICANN policy is a second level discourse that is nested within the global discourse. Rather than trying from the ground up to build a HR and PI strategy for ICANN, the ICANN discussion should start by asking itself three questions. First, using the UDHR as a preference point, where are the ICANN policy areas that impact on building, sustaining and protecting a just society? Second, on both the HR and PI fronts, what is ICANN's track record (key performance indicators?) with regard to building, sustaining and protecting a just society? Third, what are the lessons learned here with regard to corrective and future ICANN policy?
>> 
>> For those who would argue that this just shifts the the discussion away from what we mean by PI and HR, to what is "a just society", it is important to remember that while that is a subject of an ongoing discourse at the global level, there is enough guidance from that global discussion to give substance to addressing these three questions at the practical level as one element of assessing ICANN performance and policy.
>> 
>> Sam Lanfranco, NPOC Policy Chair
> 
> 
> -- 
> ------------------------------------------------
> "It is a disgrace to be rich and honoured
> in an unjust state" -Confucius
> ------------------------------------------------
> Dr Sam Lanfranco (Prof Emeritus & Senior Scholar)
> Econ, York U., Toronto, Ontario, CANADA - M3J 1P3
> email: [log in to unmask]   Skype: slanfranco
> blog:  http://samlanfranco.blogspot.com
> Phone: +1 613-476-0429 cell: +1 416-816-2852