[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Thu Dec 22 13:50:11 UTC 2016

Dear John.
Dear Parminder,
It is difficult for me to conclude on any solution between the lines of
your discussion.
Could any of you kindly give a resume of the  exchanged views.
We need to look for some compromise solution knowing that some hard liners
like x and y insist to impose their objections to send Q4.I continue to
object to all questions until all 4 are agreed
Nothing is agreed untill everything is agreed
this is a  Global multistakholder Group discussion and NOT North American
Sub-Region multistakholder Group dominated by certain individuals
Regards
Kavouss

2016-12-22 13:06 GMT+01:00 parminder <parminder at itforchange.net>:

>
>
> On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
>
> “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.
>
>
> Apologies for appearing to be flippant, but isnt that what every status
> quo-ist says.
>
> 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.
>
>
> I am not asking for a violent deviation from the path - both options that
> I propose, a new international law and immunity under existing US Act
> carries forward the path-dependency, and completely safeguard the existing
> structures and processes of ICANN, the system I think you allude to as
> requiring strengthening. What I propose in fact further strengthens it, to
> a considerable extent. The ICANN system's current jurisdictional oversight
> by a single country is its biggest weak point in terms of international
> legitimacy. ( A point, unfortunately USians here seem not able to see and
> sympathise with.) Imagine an ICANN with immunity from US jurisdiction; how
> much legitimacy, and thus strength, it adds to the system.
>
>
>
> Thanks for the back rounder Parminder. It was, along with some parallel
> research, quite helpful.
>
>
> Thanks John, you are welcome.
>
> The problem remains however that there is no analogous organization to
> ICANN merely in terms of its contractual authority.
>
>
> Firstly, if we are hoping that a fully-developed, well-rounded solution,
> with everything fully covered by enough exact precedents, to this complex
> but very genuine problem, will simply one day drop in our laps, I assure
> you that this is not going to happen. We have to work for it, join the
> dots, take risks, make innovations, and so on. The point is, who is losing
> and gaining what from the present dispensation, and who is willing to do
> what is required to do.
>
> Next, I see that organisations like International Fertilizer and
> Development Centre, which we cited as an example of an NPO given
> jurisdictional immunity, also does run many projects worldwide. Any such
> project would require use of a legal status, entering contracts, and so
> on.... We just need to look into it. But if we close our eyes, and simply
> refuse to explore options, we are not going to get anywhere. I am not
> saying this example will be an exact fit for our requirement, but we need
> to see what is possible, and innovate and evolve over it.
>
> 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.
>
>
> Yes, which is why immunity under US Act is less sustainable option than
> international law based immunity. But still better than the present
> condition. In the recent civil society statement on jurisdiction
> <http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>,
> we also suggested a method whereby any such withdrawal of immunity can be
> made difficult/ ineffectual (see option 3 in the end).
>
> The proposed jurisdictional immunity would also require all governments to
> sign off on such status, given ICANN’s reach.
>
>
> I dont see why so. Only US gov needs to agree.
>
>
>
> 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.
>
>
> These are weak excuses. It can be done in 6 months. But in any case, if it
> satisfies those who want to move towards international jurisdiction, what
> do you lose in allowing to set in motion the process, esp if you think it
> would take forever to do anything. Let those who want have it. In the
> interim, status quo would stay.
>
>
>
> 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 same domestic situation makes the continuation of ICANN under US
> jurisdiction even less tenable.
>
> This brings me to a very important point: the job of CCWG, working on
> behalf of the global community, is not to second guess what US gov will
> accept or not (unfortunately, that is what it has mostly done). If this was
> its real task, we as well may let US gov do what it may, instead of
> providing them the cover of legitimacy of the supposed will of the so
> called 'global community' which is what this process does. Our job is to
> recommend what we think in is best global interest, and is ordinarily
> plausible to do. This is what our job is, and we must just do that. Let US
> gov do its job - accept our recs or not. That burden is upon them - let s
> not take up their burden. This aspect of the work of the "community" groups
> involved in the transition process has always greatly bothered me. We must
> have clarity about - on whose behalf are we working (i think, for the
> global community, but you can clarify) and what our recs must be based on
> (I think, on our understanding of what is best for the global community,
> and not what we think US gov likes and would agree to, and what not, but
> again you can clarify)
>
>
>
> The described quest is admirable but IMO is a non-starter. Conditions do
> not exist presently to make it a possible.
>
>
> We are part of once in decades constitutional process about ICANN's
> structures. If it is not now, it is never.
>
> parminder
>
>
>
> Best regards,
>
>
>
> John Laprise, Ph.D.
>
> Consulting Scholar
>
>
>
> http://www.linkedin.com/in/jplaprise/
>
>
>
>
>
>
>
> *From:* parminder [mailto:parminder at itforchange.net
> <parminder at itforchange.net>]
> *Sent:* Tuesday, December 20, 2016 2:57 AM
> *To:* John Laprise <jlaprise at gmail.com> <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
> <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
>
>
>
>
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