[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

parminder parminder at itforchange.net
Tue Dec 20 09:31:43 UTC 2016



On Tuesday 20 December 2016 02:27 PM, parminder wrote:
> On Monday 19 December 2016 08:14 PM, John Laprise wrote:
>>
>> Possibilities of jurisdictional immunity? Could you please provide
>> examples of organizations that enjoy such.
>>
>
> John
> The most well known case of jurisdictional immunity is of course for
> organisations incorporated under international law. Unlike what has
> been argued here variously, although international law has to be made
> by governments through treaties etc that says nothing about the actual
> governance structure of the concerned organisation, ICANN in this
> case. International law can, to take an extreme case, hand over
> complete governance of a body created/ incorporated under
> international law to you and me... Nothing circumscribes how
> international law is written as long as all countries agree to it. It
> is entirely possible, and I think extremely plausible, that they would
> agree to write in such law the exact governance structure of ICANN as
> it is at present. Right now too, ICANN exists by and under the
> strength of its law of incorporation which is US law. In the scenario
> I present, it would just be international law instead of US law. Yes,
> there are matters to worked out in this regard, but if democracy and
> self-determination of all people, equally, is of any importance at
> all, we can go through the process, including doing the needed
> innovations as needed. The current international system was not handed
> over to us by God, it was evolved by people like us, who responded
> appropriately to newer and newer global challenges, as the one that
> faces us now. To turn ones face away and say, nothing can be done
> here, to evolve our democratic international systems, is to vote for a
> status quo which serves some, but not others. And these are the others
> that are protesting here, and seeking appropriate change. It is a
> political issue, lets not treat it as a technical issue, of what is
> argued to be difficult or too "troublesome" to pursue.
>
> Next, even without going the international law route, as has been said
> many times earlier here, US law allows even non profits to be given
> jurisdictional immunity. The concerned law is the _United States
> International Organisations Immunities Act
> <https://archive.icann.org/en/psc/annex9.pdf>_ . And an example of a
> US non-profit being given jurisdiction immunity under it
> is/International Fertilizer and Development Center. /This has been
> discussed in a report commissioned by ICANN itself which can be found
> at https://archive.icann.org/en/psc/corell-24aug06.html .
>
> I have been unable to understand why can we not agree to even
> jurisdictional immunity under existing US law, which keeps ICANN in
> the US, preserves its existing structures, and does go considerable
> way to address the concerns about those who are concerned about
> application of US public law on ICANN, and what it may mean for its
> global governance work.
>
> The argument is advanced that this may affect the operation of the
> newly instituted community accountability mechanism. I dont think this
> is not true.

Sorry, correction, I meant: I do not think this is true.

p

> This mechanism is a matter of internal ICANN governance system, which
> is a 'private' arrangement with choice of law available to it. It
> simply has to be put in ICANN bylaws that ICANN governance processes
> will be subject to adjudication by Californian courts as present. That
> should do. Of course the mentioned International Fertilizer and
> Development Centre also must be existing with some governance systems,
> that admit of external adjudication, even as it enjoys the benefit of
> jurisdictional immunity from US public laws. Such immunity always only
> pertains to the policy and such international core activities of the
> concerned organisation, and associated matters. It would not, for
> instance, extend to actual crime being committed by its personnel on
> its premises. All such matters of various distinctions get taken care
> of when we enter the actual processes of such immunities etc. Right
> now, the issue is only to decide to go down the route, or not.
>
> parminder
>
>>  
>>
>> Best regards,
>>
>>  
>>
>> John Laprise, Ph.D.
>>
>> Consulting Scholar
>>
>>  
>>
>> <http://www.linkedin.com/in/jplaprise/>http://www.linkedin.com/in/jplaprise/
>>
>>  
>>
>>  
>>
>>  
>>
>> *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 7:10 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
>>
>>  
>>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20161220/4307fd9a/attachment.html>


More information about the Accountability-Cross-Community mailing list