[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Thu Dec 22 21:51:34 UTC 2016

Dear All,
Once again,
NOTHING  IS AGREED UNTIL EVERY THING IS AGREED .
EITHER ALL 4 OR NOTHING
Regards
Kavouss

2016-12-22 17:01 GMT+01:00 parminder <parminder at itforchange.net>:

> 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>:
>
>>
>>
>> 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/>http://www.linkedin.com/in/jpl
>> aprise/
>>
>>
>>
>>
>>
>>
>>
>> *From:* parminder [mailto:parminder at itforchange <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 <jlaprise at gmail.com> <parminder at itforchange.net>
>>
>>
>>
>> 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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>>
>>
>>
>>
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