[CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
Phil Buckingham
phil at dotadvice.co.uk
Sun Jun 19 17:45:20 UTC 2016
Phil,
I also wholeheartedly agree.
However is there not a strong case for ICANN's new CEO to start the process
of breaking up ICANN into two separate legal entities, with the creation of
a new for profit corporation. It doesn't necessarily have to be incorporated
in California.
This would replace the GDD - to properly manage the closure of the
(imploding) Round 1 gTLD programme as soon as possible, more effectively
manage the $Ms of revenues generated and received in the coming years, as
well as $100M auction proceeds, from the new gTLD Registries and Registrars,
that will at least go some way to paying for the huge costs ( already over
budget) of the WS2 implementation and the inevitable WS3.
Regards,
Phil
From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of James
M. Bladel
Sent: Sunday, June 19, 2016 4:54 PM
To: Phil Corwin
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble
for .africa
Phil -
Well said, and I wholeheartedly agree with your assessment.
Thanks-
J.
From: <accountability-cross-community-bounces at icann.org> on behalf of Phil
Corwin <psc at vlaw-dc.com>
Date: Sunday, June 19, 2016 at 10:47
To: parminder <parminder at itforchange.net>, Seun Ojedeji
<seun.ojedeji at gmail.com>
Cc: "accountability-cross-community at icann.org"
<accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble
for .africa
Paraminder:
You keep advocating for ICANN to be transferred to "international
jurisdiction", but can you go beyond that slogan and articulate exactly what
organizational form and subject to what enforcement authority you refer?
I presume that you are not advocating that ICANN relocate its legal
jurisdiction to that of another nation, as that would simply raise the same
concerns that you have expressed in regard to the U.S. legal system (not
U.S. Government control, as you incorrectly infer) within the context of a
different nation-state.
If you are advocating that ICANN become a UN-type IGO then such a result is
directly contradictory to the conditions set by the NTIA for the transition
- and if there is widespread support for such a bait-and-switch result we
should all know it now before the transition occurs.
Making ICANN subject to international jurisdiction also raises the question
of what adjudication forum would address relevant legal disputes, which in
ICANN's case are primarily of contract interpretation and enforcement. The
International Criminal Court would not be relevant; and the International
Court of Justice only permits nation-states to be parties before it.
There is also the issue of recognition of ICANN's proposed "international
jurisdiction" status. Generally, in the instance of organizations created by
multilateral treaty, each nation has the option of recognizing and
participating in the arrangement - or not.
My own views on this subject are quite clear - see
http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_
jurisdiction/ :
For the sake of legal clarity and organizational stability, it is incumbent
upon WS2 participants to resolve this matter as soon as feasible - and to
come down decisively in favor of a permanent link between ICANN and U.S.
jurisdiction. If this were a matter of first impression then impartial
consideration of an alternative national jurisdiction might be in order. But
it is a not a matter of first impression, and multiple factors weigh in
favor of enshrining ICANN's permanent status as a California non-profit
corporation in a Fundamental Bylaw:
? ICANN has embodied California non-profit status since its founding
in 1998
? With the EC and PTI required to be California non-profits by
revised Fundamental Bylaws, an inconsistent status for ICANN itself could
raise confounding legal and policy issues for both accountability and
control
? The accountability plan has been designed to be maximally
effective in the context of California law
? The U.S. legal system is well regarded for its dedication to
objective determinations under the rule of law
? Perhaps most importantly, the First Amendment of the U.S.
Constitution guarantees that the U.S. government cannot take actions that
would coerce ICANN into using its root zone control to abridge free speech.
If you are going to advocate for ignoring all the points cited above and
ICANN's transfer to "international jurisdiction" then I would respectfully
ask that you go beyond that phrase and enlighten us all as to exactly what
form this would take, how it would be achieved, how it would ensure that
ICANN would not become subject to governmental control, and in which venue
contract and other legal disputes pertaining to ICANN would be resolved? You
state, "There are hundreds of international organizations functioning under
international law, and so can ICANN", but can you go beyond that and provide
examples of relevant examples for ICANN that are not UN agencies and thereby
subject to multilateral political influence?
Until you provide us with the "simple logic" of such further details I must
regard your advocacy as merely rhetorical with no well-considered substance
behind it, and thereby incapable of amassing consensus support within an
ICANN community that has just labored two-plus years to create transition
and accountability proposals that are firmly rooted in U.S. jurisdiction.
Sincerely,
Philip
Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
parminder
Sent: Sunday, June 19, 2016 3:12 AM
To: Seun Ojedeji
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble
for .africa
On Sunday 19 June 2016 12:11 PM, Seun Ojedeji wrote:
Hello Parminder,
As an African, I would tend to agree with your point and wish that your
conclusion point was the case (as a reactive measure). However as you know,
we have discussed this extensively in the past (on different fora) and we
found that the means to the end of such is so complicated and the end itself
would ultimately create a govt lead ICANN which i certainly don't want.
If ICANN functioning under California non profit law - made by government -
and subject to US jurisdiction - also made of and by governments (and
governments alone) - can continue to be seem and treated as a
multistakeholder organisation, to your and others' satisfaction, there is
simply no reason why ICANN cannot be and function similarly under
international jurisdiction, created by international law.
Your preferring US law/ jurisdiction over international law/ jurisdiction
is, simply and nothing more than, a statement of your preferring the US
jurisdiction over international jurisdiction ( which, while you have a right
to your choices, I consider democratically unfortunate). None is less
complex that the other. There are hundreds of international organisations
functioning under international law, and so can ICANN. And if ICANN has some
special contexts and needs, that would be met by relevant innovations in
international law, but not by a democratic regression to subjecting the
world to the US law. Democracy is precious, and people have done much to
achieve it. Please dont treat it lightly, citing technicalities against it.
That is extremely unfortunate. Sorry for the analogy but it directly
applies; every tyrant/ dictator is prone to argue that democracy is messy,
and difficult and, as you say, complicated. But such an argument does not
carry, does it.
To call an ICANN which is constituted under US law, and fully answerable to
US jurisdiction (meaning US government, its all branches), as fully
multistakeholder;
and, at the same time, an ICANN functioning exactly in the same manner, but
now under international law and jurisdiction, as (to quote you) becoming a
government let ICANN
is simply to make a misleading statement.
Although, the fallacy contained in it is as clear as daylight, among status
quoists circles this statement or argument continues to be made and re-made.
But, for other than the fully converted and therefore impervious to simple
logic, and demands of that high value of democracy, it takes away nothing
from the my arguments regarding the unfairness of ICANN being subject to US
jurisdiction, and the urgent need to move it to international jurisdiction,
which you are right, I have often made on various fora, and will keep
making. It is a political act.
regards, parminder
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 19 Jun 2016 07:28, "parminder" <parminder at itforchange.net> wrote:
On Sunday 19 June 2016 11:31 AM, Jordan Carter wrote:
I may have missed something, Parminder, but isn't it a plus rather than a
negative for ICANN accountability that process errors can be appealed and
the company held to account for them?
Jordan
In may make ICANN accountable, but to a system that is unaccountable to the
global public, and is only accountable to the US public (there could even be
cases where these two could be in partial conflict) - that in sum is the
jurisdiction issue. ICANN accountability issue is different, though linked,
bec it has to be accountable, but to the right system, which itself is
accountable to the global public. Different 'layers' of accountability are
implicated here, as people in IG space will like to say!
Here the issue is, a US court has no right to (exclusively) adjudicate the
rights of the African people, bec African people had no part in making or
legitimising the system that the US court is a part of. Dont you see what
problem we will be facing if the US court says that fairness of process or
whatever demands that .africa goes to DCA. If you were an African, what
would you feel?
An ICANN under international law will be subject to only an international
judicial process, which Africa is equally a part of, and gives legitimacy
to.
parminder
Jordan
On 19 June 2016 at 07:26, parminder <parminder at itforchange.net> wrote:
On Sunday 19 June 2016 04:13 AM, Paul Rosenzweig wrote:
The Economist | A virtual turf war: The scramble for .africa
http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-califo
rnia-are-denying-africans-their-own-domain-scramble?frsc=dg%7Cd
Not that this fact is being discovered now, but it still is the simplest and
clearest proof that US jurisdiction over ICANN's policy processes and
decisions is absolutely untenable. Either the US makes a special legal
provision unilaterally foregoing judicial, legislative and executive
jurisdiction over ICANN policy functions, or the normal route of ICANN's
incorporation under international law is taken, making ICANN an
international organisation under international law, and protected from US
jurisdiction under a host country agreement.
parminder
Paul Rosenzweig
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Jordan Carter
Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649>
jordan at jordancarter.org.nz
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