[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Tue Dec 20 15:07:18 UTC 2016

“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.”

Rather, it is an acknowledgement of reality. Rule of law is neither globally strong nor evenly distributed. I can imagine a world in which the way forward you describe is plausible but, regrettably, it is not the one we live in. Other systems need strengthening and in some cases even existence before the way forward is open. It’s not a vote for the status quo but a recognition of path dependency. 

Thanks for the back rounder Parminder. It was, along with some parallel research, quite helpful. The problem remains however that there is no analogous organization to ICANN merely in terms of its contractual authority. I’d also add that many of the benefits of the act are at the discretion of the US Secretary of State and can be revoked. The proposed jurisdictional immunity would also require all governments to sign off on such status, given ICANN’s reach.

I know that there is a significant literature on international compacts and law. Given the often decades long time frames for the passage and acceptance of such law, the Internet as we know it is unlikely to exist by the time it comes into force. 

To your question about why we do not discuss jurisdictional immunity under US law: it is because the domestic political reality of the situation makes such an eventuality so remote as to be hypothetical. 

The described quest is admirable but IMO is a non-starter. Conditions do not exist presently to make it a possible.

Best regards, 

John Laprise, Ph.D.

Consulting Scholar

 <http://www.linkedin.com/in/jplaprise/> http://www.linkedin.com/in/jplaprise/

From: parminder [mailto:parminder at itforchange.net] 
Sent: Tuesday, December 20, 2016 2:57 AM
To: John Laprise <jlaprise at gmail.com>; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

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. 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/

From: accountability-cross-community-bounces at icann.org <mailto: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 <mailto: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 

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