[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
parminder
parminder at itforchange.net
Thu Dec 22 16:01:51 UTC 2016
Dear Kavouss
You are right, we should first deal with the issue of the questionnaire.
I agree, as do many others, that there is no justification to remove the
proposed Q 4 from the questionnaire. The question must go out along with
others.
A question seeking information is only a question seeking information.
People may chose to not respond to it, or give different responses,
likely in opposition to one another. That is all very fine, and quite
expected. But such forceful arguments to not ask for certain kinds of
information is very disturbing, even alarming. (I have issues with how
the other questions are framed, but I am fine to let them go out because
some people want them to be posed.)
Ordinarily, if a good number of participants here wanted a question,
that should be enough to include it. Here, a majority of those who voted
on the issue of this particular question wanted the question included.
That should have conclusively stopped the debate. But no, not so. There
is persistent effort to censor this question. And this in a process that
is advertised as open, transparent, collaborative, and what not. There
is something very basically wrong here.
parminder
On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
> 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
> <mailto: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 therecent 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/>http://www.linkedin.com/in/jplaprise/
>> <http://www.linkedin.com/in/jplaprise/>
>>
>>
>>
>>
>>
>>
>>
>> *From:*parminder [mailto:parminder at itforchange.net
>> <mailto:parminder at itforchange.net>]
>> *Sent:* Tuesday, December 20, 2016 2:57 AM
>> *To:* John Laprise <jlaprise at gmail.com>
>> <mailto:jlaprise at gmail.com>;
>> accountability-cross-community at icann.org
>> <mailto: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
>> <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/
>> <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
>> <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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>>
>>
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