[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

[parminder]

On Tuesday 20 December 2016 01:19 AM, Phil Corwin wrote:
>
> I believe that requesting views regarding “/providing possible
> jurisdictional immunity”/ are both misleading and outside the scope of
> this WG.
>
>  
>
> ICANN based upon the MSM is of necessity an entity that is private in
> nature in which civil society, academia, business, and other private
> parties formulate policy and governments have a secondary role to
>  provide advice. The only entities I know other than nation-states
> that enjoy any degree of jurisdictional immunity are International
> Intergovernmental Organizations (IGOs) established by treaty, and in
> those organizations governments have the controlling role.
>

International law can establish any kind of body with any kind of
governance structure - it is not necessary for its governance to be
governmental. An international law can very well cut paste ICANN's
existing restructure and processes, and that would keep ICANN
essentially as it is. Just not incorporated under US law but now under
international law, where all people feel more equal.

> Hence, pursuit of any type of jurisdictional immunity is equivalent to
> an effort to change the fundamental nature of ICANN,
>

Not so, as per above.

>  as well as being in violation of the key condition of the IANA
> transition, which is that ICANN would not become an IGO.
>

It is the jurisdictional layer that is being changed, from being of one
government, the US, to all governments, meaning international law. As
much as ICANN is not a governmental organisation just becuase it is
incorporated under US (government) law, it does not necessarily become
an IGO if incorporated under international law. Such characterisations
are false and misleading.

> In addition, providing ICANN with jurisdictional immunity would
> insulate it from legal process and hence undermine accountability.
>

Not necessarily. Its accountability mechanism through choice of law can
still be made subject to adjudication by Californian courts.

>  
>
> Finally, as I know based upon my current tenure as Co-Chair of the WG
> looking at access to curative rights processes by IGOs, when we sought
> expert legal advice on the recognized scope of immunity for IGOs we
> learned that such immunity is not absolute and that the scope is based
> upon the specific fact situation involved as well as the national
> court in which the immunity is claimed. Hence, going down this road
> would require a tremendous amount of additional legal research dealing
> with a variety of hypothetical scenarios in separate national
> jurisdictions.
>

It is a matter of equality and democratic rights of non US citizens, to
be governed by laws that they participate in making (reminds me of a
ringing slogan of US independence struggle!). If that matters, then
going through some processes, which may take time and other resources,
should not be a big thing.

BTW, that is also why we may really need to have some sight of who is
saying and arguing what in this discussion (apropos Kavouss's request).
For US citizens, they have their democratic rights protected under the
current ICANN structures, but not those who are not US citizens... One
keeps hoping that, with its long democratic and eclectic traditions, US
citizens would also be mindful of other people's democratic rights, but
this does not seem so in this current discussion.

I have often asked this, but no US citizen ever replies: would you have
accepted sitting down an ICANN with a global governance role to be
subject to Indian jurisdiction and laws? Let one of you at least give a
response :).

parminder


>  
>
>  
>
>  
>
> *Philip S. Corwin, Founding Principal*
>
> *Virtualaw LLC*
>
> *1155 F Street, NW*
>
> *Suite 1050*
>
> *Washington, DC 20004*
>
> *202-559-8597/Direct*
>
> *202-559-8750/Fax*
>
> *202-255-6172/Cell***
>
> * *
>
> *Twitter: @VlawDC*
>
>  
>
> */"Luck is the residue of design" -- Branch Rickey/*
>
>  
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *parminder
> *Sent:* Monday, December 19, 2016 8:10 AM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>  
>
>  
>
>  
>
> On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
>
>     SNIP 
>
>     John Laprise's wording was much, much better: 
>
>     "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"
>
>
> This formulation does not include possibilities of jurisdictional
> immunity.
>
> Something like
>
>
> "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"
>
>
> would be better.
>
> parminder
>
>  
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>  
>
> ------------------------------------------------------------------------
>
> No virus found in this message.
> Checked by AVG - www.avg.com <http://www.avg.com>
> Version: 2016.0.7924 / Virus Database: 4664/13557 - Release Date: 12/08/16
> Internal Virus Database is out of date.
>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20161220/06a14b60/attachment.html>