Human Rights obligations are something that obtain in respect of the relationship between the individual and the State, that is to say between the individual on the one hand, and governments/public authorities on the other.
This is fairly obvious, because governments and public authorities may regulate human activity, so it’s commonly accepted that there should be certain limits on this.
ICANN is a multimillion dollar corporation which few people in the outside world have heard of, yet it affects, at the overall, and fundamental, the way the whole internet works
Human rights includes some absolute things like the right to life, and freedom from slavery and torture. Clearly, these rights are not engaged in respect of ICANN’s work.
But human rights also includes the right to property (including intellectual property), the right to privacy and the right to free expression — three things that are very closely associated with ICANN’s mission.
The problem is this:
At the moment, there is a backstop giving authority and legitimacy to ICANN’s work. The US Government does have responsibilities to ensure (however it does it) that fundamental and human rights are respected.
Whilst you could argue how effective it is in this regard, there is no doubt that the United States supports the rights set out in the Universal Declaration (of which the US was a member of the drafting commission).
Once ICANN is entirely a private sector organisation, it will have no legal or other obligations to respect fundamental and human rights whatsoever.
The only remaining influence that could keep ICANN on the straight and narrow, regarding matters of respect for human rights, will be the GAC – an advisory committee made up of government representatives, tasked with providing advice on public policy matters to ICANN.
However, the GAC is a complex organisation, which has, in microcosm, many of the difficulties that beset other multinational organisations.
The Cross Community Working Group on ICANN Accountability, has however, reached a strong consensus on the issue, which is
ICANN must incorporate a binding commitment to human rights principles before transition may proceed..
However the working group also fully recognises that such a commitment can only apply within ICANN’s limited and defined mission of coordinating the internet’s system of identifiers. It should be obvious to anyone who gives the matter more than 30 seconds thought that ICANN is not going to be expected to become a mini-UN peacekeeping force. And no one is suggesting this.
A rudimentary commitment to international human rights standards is already there, to some extent.
Article 4 of ICANN’s Articles of Incorporation (which was examined in the .XXX adjudication) creates, under California law, a binding obligation to follow applicable international law.
In its response, the ICANN Board appeared to reject the principle of human rights safefguards for ICANN’s work, saying it was ‘premature’.
In a face-to-face meeting in Santa Monica today, the Board appeared to row back slightly from this, but the air was nonetheless full of hypothetical strawmen as to why it might be dangerous to add a commitment for respect for human rights into ICANN’s mission.
And it’s still unclear whether the Board will accept that ICANN should have this fundamental duty to the global public interest.
If it does not, however, it will create the very unwanted attention regarding lack of accountability that it seeks to avoid.