[CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll Results

Kavouss Arasteh kavouss.arasteh at gmail.com
Tue Dec 27 12:06:25 UTC 2016


Grec,
Tks again,
As I said I believe ,it is counter productive to discuss many alternative,
I could agree with formulation of Parminder
Regards
Kavouss

2016-12-27 12:51 GMT+01:00 parminder <parminder at itforchange.net>:

> Greg/ All
>
> I think the Alternative 1, which you take as likely candidate for broader
> support, is fine. I list this formulation below:
>
> What are the advantages or disadvantages, if any, relating to ICANN's
> jurisdiction*, particularly with regard to the actual operation of ICANN’s
> policies and accountability mechanisms? Please support your response with
> appropriate examples, references to specific laws, case studies, other
> studies, and analysis. In particular, please indicate if there are current
> or past instances that highlight such advantages or problems.
>
> (* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being
> subject to U.S. and California law as a result of its incorporation and
> location in California, (b) ICANN being subject to the laws of any other
> country as a result of its location within or contacts with that country,
> or (c) any “choice of law” or venue provisions in agreements with ICANN.)
>
> ENDS
>
> Lets move on with it. We are spending too much time on framing a question.
>
> parminder
>
>
>
> On Tuesday 27 December 2016 01:26 PM, Greg Shatan wrote:
>
> All:
>
> Two quick but important points:
>
> 1.  We have strayed from the basic topic in front of us, which is to
> decide on the formulation of the questions to be sent out.  I have gone
> through the emails and meeting notes and pulled the alternative
> formulations and revisions in to a single document, attached to this email.
>
>
> With regard to question 4, I believe that the best way to move forward is
> to see if one of the alternatives gets stronger support within the CCWG.
> If we can get to a point where there is broad support for the question
> without significant opposition that may resolve issues relating to whether
> and when this question will be sent out.
>
> 2.  Our overall agreed-upon working method is to first identify, discuss
> and arrive at a list of issues that raise concerns, and then move on to
> identifying, discussing and arriving at a list of potential remedies for
> each issue on our list.  We are still working on issues.  For a remedy to
> be up for discussion when we move to discussing remedies, that remedy needs
> to provide a solution to an  issue.  We can't discuss a potential remedy
> without having an issue it is intended to solve.  If there is a potential
> "remedy" but it does not solve any of our issues, we won't discuss it.
>
> We've already put aside one potential "remedy" until we see whether we
> identify any issues it would solve -- the "remedy" of changing ICANN's
> jurisdiction of incorporation or headquarters location.  "Immunity" is
> another potential remedy that we need to deal with the same way.  Skipping
> forward to discussions of remedies is only slowing down our discussion of
> issues.  I strongly suggest we refocus on issues, so that we can get to the
> discussion of remedies.  Once we've agreed on a list of issues, a
> discussion of remedies will be more productive.
>
> Our working method of dealing with issues first and then remedies may also
> help us find agreement on a way to deal with question 4.  Questions 1-3
> clearly deal with issues.  Perhaps a version of question 4 that is limited
> to asking for issues will get broader support ("Alternative 1" on the
> attachment may fit this description.)
>
> Greg
>
> On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
>> Hello,
>>
>> I also don't see the logic in sending two questionnaires. There may be
>> some logic in treating the responses to questions 1 to 3 separate from
>> question 4, but we are not yet at that stage. It will be better the
>> question is not added at all than to send it as a separate questionnaire.
>>
>> Overall I am indifferent about adding or not adding but since there is
>> seemingly a lot of support to add, I don't see the significant harm it will
>> cause by doing that[1]. Based on the response of the Co-Chairs to my
>> question, I would suggest that it's better to let all the 4 questions be
>> presented and let's see what issues emerge from their responses. Then we
>> can start to do a few round trips to legal and hopefully remind ourselves
>> the possible consequences of addressing certain issues in a particular way.
>> Some of which has already been echoed during WS1.
>>
>> Regards
>> 1. Nevermind that it could generate some political news/headlines but am
>> sure this group is already used to that by now ;-)
>> Sent from my LG G4
>> Kindly excuse brevity and typos
>>
>> On 26 Dec 2016 19:19, "avri doria" <avri at acm.org> wrote:
>>
>>> Hi,
>>>
>>> Where we differ is on the idea of separating the questions into 2
>>> questionnaires.
>>>
>>> I think it is going to be hard enough to get people to pay attention to
>>> one questionnaire, asking them to do two is daunting. A fourth question
>>> will not test their patience in the same way another questionnaire would.
>>>
>>> So with Kavouss I say:
>>>
>>> > Allow all 4 questions go out and then wait what will happens  .
>>>
>>> avri
>>>
>>>
>>> On 26-Dec-16 11:42, Mueller, Milton L wrote:
>>> >> -----Original Message-----
>>> >> At the same time, let us all try to return to a constructive and
>>> step-by-step
>>> >> approach, building on the progress made so far, in order to make
>>> progress on
>>> >> our mandate, established by the whole multistakeholder community back
>>> in
>>> >> Marrakech.
>>> > I agree, and I think both Pedro's and Phil's position are based on
>>> some confusion of issues. It we calm down a bit and look at this more
>>> carefully we can make progress.
>>> >
>>> > Pedro may be confusing the inclusion or exclusion of Question 4 in our
>>> initial request with the question of whether we explore issues in US
>>> jurisdiction at all.  But excluding Question 4 from our initial request for
>>> information is not the same as a refusal to explore the questions it
>>> raises. I have proposed _separating_ Q4 from the other 3 questions, not
>>> eliminating it entirely. I proposed this not because I want to avoid the
>>> questions Q4 poses, but because I want those questions to be developed
>>> better and I want to avoid conflating it with the narrower questions about
>>> dispute resolution that Q's 1-3 were designed to address. It is a mistake
>>> to put those two things together. The information we gather from Q's 1-3
>>> will suffer from their attachment to the potentially more controversial
>>> issues raised by Q4. Let me also add that the divisive insistence that this
>>> is a matter of US citizens vs non-US citizens needs to be dropped. Avri and
>>> myself, e.g., are both US citizens/residents and have serious concerns
>>> about possible intrusions of US foreign policy and other nationalistic and
>>> governmental concerns into ICANN matters. At the same time we are both
>>> staunch supporters of a nongovernmental model in this space and have no
>>> inherent objection to California law as ICANN's basis.
>>> >
>>> > Phil Corwin on the other hand is confusing the issue of whether
>>> ICANN's corporate HQ is in California with the question of whether ICANN
>>> will be an intergovernmental entity. These questions have very little to do
>>> with each other. It is of course true that there are still a few people out
>>> there who would like for ICANN to become intergovernmental, but they are a
>>> tiny minority and the weight of history is totally against them. Put more
>>> bluntly, it ain't gonna happen. Supporters of the MS model and opponents of
>>> intergovernmentalism have legitimate reasons to investigate the impact of
>>> US jurisdiction, because the US is a global power with very specific
>>> foreign policy and military interests. US jurisdiction thus may have the
>>> potential to create opportunities for one government -  the US - to have an
>>> inappropriate level of influence over ICANN's transnational, nonstate actor
>>> based governance processes. One can consider those issues without implying
>>> that ICANN's corporate HQ needs to move.
>>> >
>>> > So let's stop making the status of Q4 a proxy for a long-settled war
>>> over whether ICANN is private or governmental, and let's stop pretending
>>> that those who want to separate the issues raised by Q4 from the narrower
>>> more focused issues in Q1-3 are trying to avoid legitimate issues.
>>> >
>>> > As for creating a separate CCWG, are you kidding? This is the CCWG
>>> subgroup created specifically for jurisdictional issues and we don't make
>>> difficult issues easier to resolve by creating additional structures.
>>> >
>>> > Dr. Milton L. Mueller
>>> > Professor, School of Public Policy
>>> > Georgia Institute of Technology
>>> >
>>> >
>>> >
>>> >> In this vein, and consistent with our conversation in Hyderabad, let
>>> us
>>> >> continue with the line directed to requesting input from the wider
>>> community.
>>> >>
>>> >> The four questions developed so far will allow us to gather much
>>> needed input
>>> >> on facts, examples and well-founded opinions on the influence of
>>> ICANNs
>>> >> jurisdiction, taking into account its multiple layers, on its
>>> operations and
>>> >> accountability.
>>> >>
>>> >> If we all are constructive and accept esch others' views as worthy of
>>> further
>>> >> discussion and study, we will be able to get this important step
>>> further.
>>> >>
>>> >> Hence, let us please stay on the right track and finalize
>>> formulations of all four
>>> >> questions, and keep up the good spirit of cooperation.
>>> >>
>>> >> with my best wishes for you all during the festivities
>>> >>
>>> >> kind regards
>>> >>
>>> >> Jorge
>>> >>
>>> >>
>>> >> ________________________________
>>> >>
>>> >> Von: Pedro Ivo Ferraz da Silva <pedro.ivo at itamaraty.gov.br>
>>> >> Datum: 24. Dezember 2016 um 15:53:55 MEZ
>>> >> An: Greg Shatan <gregshatanipc at gmail.com>, parminder
>>> >> <parminder at itforchange.net>, Kavouss Arasteh
>>> >> <kavouss.arasteh at gmail.com>
>>> >> Cc: accountability-cross-community at icann.org <accountability-cross-
>>> >> community at icann.org>
>>> >> Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
>>> Results
>>> >>
>>> >> Dear CCWG-colleagues,
>>> >>
>>> >> After reading some comments in this email thread, I must admit to be
>>> really
>>> >> disappointed.
>>> >>
>>> >> Some of our colleagues in the CCWG seem to have forgotten - perhaps on
>>> >> purpose - that the topic of jurisdiction was allocated to WS2 as a
>>> result of a
>>> >> postponement, since the majority of this group thought it was not
>>> appropriate
>>> >> to deal with it in the pre-transition period due to time constraints.
>>> My
>>> >> government  was not in favor of postponing the discussion on
>>> jurisdiction, as
>>> >> we consider it was - and remains - a fundamental aspect of a new
>>> ICANN truly
>>> >> governed by the multistakeholder community without any pre-conditions,
>>> >> but in respect to the viewpoint of the other colleagues, we agreed to
>>> move it
>>> >> to WS2.
>>> >>
>>> >> Now that time has come to properly deal with this topic, it is quite
>>> frustrating
>>> >> to notice that some participants  insist on limiting and/or
>>> procrastinating this
>>> >> debate, including by using the absurd argument that any discussion
>>> around
>>> >> jurisdiction cannot put into question any aspect already decided in
>>> WS1,
>>> >> which is embedded in the California law. We cannot see good faith in
>>> that kind
>>> >> of circular argument.
>>> >>  In our view, the  discussion around the inclusion or exclusion of
>>> Q.4 shows
>>> >> quite clearly that some of those who have fiercely objected to any
>>> jurisdiction
>>> >> debate during WS1 are  maintaining their objection in WS2 as well. On
>>> that
>>> >> particular topic (Q.4) we concur with the view that upon deciding on
>>> >> institutional arrangements we should not only consider already
>>> occurred
>>> >> cases but also take into account logically strong possibilities. The
>>> responses to
>>> >> the questionnaire should thus help us to deal with all possibilities
>>> associate to
>>> >> jurisdiction. In case any unsubstantiated opinion will be received,
>>> it should be
>>> >> summarily discarded.
>>> >> From the various jurisdiction calls it became quite evident that a
>>> substantial
>>> >> part of the subgroup - mainly non-US - has great interest in
>>> examining and
>>> >> debating ways through which we can make sure that any issue
>>> associated to
>>> >> jurisdiction  be addressed in a way compatible  with the company's
>>> >> international remit of coordinating Internet public identifiers. In
>>> that context, I
>>> >> would like to highlight my government´s understanding that although
>>> the
>>> >> proposed questionnaire under discussion may provide us with some
>>> relevant
>>> >> factual information, it does not in any way cover all aspects of
>>> interest. We
>>> >> would like to refer, for example, to the list of issues compiled by
>>> Kavouss
>>> >> Arasteh as per his 13 December 2016 e-mail. We would also refer to
>>> >> questions that have continuously been asked by Parminder, apparently
>>> >> without any satisfactory answer. Those issues and questions include,
>>> for
>>> >> example, dispute settlement related topics, which demonstrates, in
>>> our view,
>>> >> that jurisdiction cannot be seen purely from businesses´ viewpoint. As
>>> >> someone has stated, we also need to look at the relationship between
>>> ICANN
>>> >> and third parties and adequately consider non-contracted Parties that
>>> might
>>> >> be affected by ICANN´s acts and/or omissions.
>>> >> From the perspective of the Brazilian government, the topics raised by
>>> >> Kavouss, Parminder and others are issues of particular interest
>>> which,
>>> >> needless to say, will not be adequately addressed through the mere
>>> analysis
>>> >> of the answers provided to the questionnaire, whether it includes Q.4
>>> or not.
>>> >>  My government has  expressed its interest in pursuing discussion on
>>> >> jurisdiction through those angles  many times - both  during the IANA
>>> >> transition process and  well before that. Other governments have done
>>> the
>>> >> same, as well as a sound number of civil society organizations around
>>> the
>>> >> globe. The "NETmundial Multistakeholder Statement", while calling for
>>> the
>>> >> internationalization of ICANN, clearly expresses this as well. Let me
>>> >> emphasize, by the way, that the NETmundial Statement calls for ICANN´s
>>> >> internationalization and not for it to become an intergovernmental
>>> >> organization. Those are two different notions that should not be
>>> confounded.
>>> >>
>>> >> If this subgroup fails to deal with the multidimensional issues
>>> associated to
>>> >> jurisdiction  properly , it may be applauded by some segments , but
>>> it will not
>>> >> contribute to putting in place a framework that will ensure the
>>> shared goal of
>>> >> making ICANN a legitimate  entity in the eyes of all stakeholders,
>>> including
>>> >> governments. To achieve that, no issues should be discarded as "non
>>> >> important" or "not yet verified". While preserving the essence of
>>> what was
>>> >> achieved in WS1, innovative thinking, including on the part of
>>> persons with
>>> >> legal expertise, will be needed. Is it worth to wipe an important
>>> debate under
>>> >> the carpet just to comfort one or a few stakeholder groups while
>>> >> discontenting others? What kind of legitimacy is such a biased and
>>> limited
>>> >> exercise likely to have within the international community? .
>>> >>
>>> >> It is time the subgroup - including the coChairs - make a honest
>>> assessment of
>>> >> the various viewpoints related to  ICANN's jurisdiction and conduct
>>> the debate
>>> >> as openly as possible in order to address all the concerns and
>>> interests behind
>>> >> it.
>>> >>
>>> >> Kind regards,
>>> >>
>>> >> Sec. Pedro Ivo Ferraz da Silva
>>> >> Division of Information Society
>>> >> Ministry of Foreign Affairs - Brazil
>>> >> T: +55 61 2030-6609 <+55%2061%202030-6609>
>>> >>
>>> >> ________________________________
>>> >> De: accountability-cross-community-bounces at icann.org [accountability-
>>> >> cross-community-bounces at icann.org] em nome de parminder
>>> >> [parminder at itforchange.net]
>>> >> Enviado: quinta-feira, 22 de dezembro de 2016 14:01
>>> >> Para: Kavouss Arasteh; Greg Shatan
>>> >> Cc: accountability-cross-community at icann.org
>>> >> Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
>>> Results
>>> >>
>>> >>
>>> >> 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 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/jplapri
>>> >> se/>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 <mailto:jlaprise at gmail.com>
>>> >> <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 .
>>> >>
>>> >> 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:accountabili
>>> ty-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<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
>>> > _______________________________________________
>>> > Accountability-Cross-Community mailing list
>>> > Accountability-Cross-Community at icann.org
>>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>> >
>>>
>>>
>>>
>>> ---
>>> This email has been checked for viruses by Avast antivirus software.
>>> https://www.avast.com/antivirus
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>> <https://archive.icann.org/en/psc/annex9.pdf> <jlaprise at gmail.com>
>>> <jlaprise at gmail.com> <http://www.linkedin.com/in/jplapri>
>>> <parminder at itforchange.net> <gregshatanipc at gmail.com>
>>> <pedro.ivo at itamaraty.gov.br>
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>
>
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