[CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

[parminder]

On Sunday 19 June 2016 09:17 PM, Phil Corwin wrote:
>
> 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?
>

Phil,

Thanks for your interest in this subject. As noted by Seun, in fact I
have discussed my proposed organisational form on several elists, like
ISOC policy list, ALAC, and IG civil society lists, and so it is not
just a slogan. But I do understand that institutional changes are a slow
and laborious processes, and I am happy to describe it all over again,
especially when this space is now officially mandated to discuss this
issue.

>  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.
>

You are right. Taking it to another nation would not solve the problem,
and doing that is *not* my proposal. Though with a small caveat. A
county like Switzerland voluntarily offers jurisdictional immunity to
international organisations like the Red Cross, and that kind of a thing
though not ideal is still better than the present situation. It is open
for the US government to propose such an arrangement.

As to your correcting me about "US legal system" and "not US government
control", I dont think I used the word "control" in any of my emails. As
for government, it is my understanding that this term included all
branches of the state, legislative, judicial and executive. As my email
says "... US jurisdiction (meaning US government, its all branches)...".
Even speaking about just the executive branch, do remember that their
remit also equally applies over ICANN, for instance that of the Office
of the Foreign Assets Control. Remember also that the FCC may have
forborne from exercising its authority on Internet names and numbers, it
nevertheless has it, and can apply it when it wants. And so on. An
endless number of executive bodies may have such remit. 

Also, as bit of an aside, it is interesting to note that with respect to
the US gov's role, it is never 'US gov control', even when, as at
present, their role is direct and that of the principal in the whole set
up of names and numbers. One the other hand,  the slightest mention of
the lightest role of the UN, and it is directly elevated to 'UN
control'... If we have to undertake the 'jurisdiction' discussion
seriously, *in this international forum*, I think we need to adopt a
more neutral attitude and vocabulary. Aside ends.

>  
>
> 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.
>

No, I do not propose ICANN to become an IGO. I propose framing of
international law, no doubt in an inter-gov manner (to which US gov will
have to give assent, initially, as well as to any later amendments,
which can be rendered constitutionally difficult) which recognises ICANN
in, more or less,  exactly the same form as it is now, *exactly the same
multistakeholder form*. Such form is to be inscribed in the
incorporating law - for ever. Would you consider current or even
post-transition ICANN to be a gov body, since it is incorporated under a
gov made and administered law? (You and others are not ready to consider
it a gov body even when, as currently, it functions directly as a
contractor of the US gov - what is rather worse than double standards.
Shows how hopelessly loaded this debate is. )

I have to repeat what I said earlier in this thread:

When ICANN can be considered multistakeholder, and not a gov
organisation, even when incorporated under US law, and subject to it,
laws which are not only made only by governments , but also can any time
be changed by them

why can ICANN not be considered multistakeholder, as incorporated under
international law, and similarly made in and by an inter-gov system.

Therefore, my proposal does not contradict conditions set by NTIA
because it does not "replace the NTIA role with a government-led or an
inter-governmental organization solution". What it seeks to replace is
the US jurisdiction, something nowhere mentioned in the NTIA conditions.

>  
>
> 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.
>

The Internet is a major and unique new global phenomenon - almost
setting off a new social epoch. Its governance will require innovations,
but these are best done within democratic norms, and building on
existing democratic institutions. We will need to work on the means of
solving legal disputes, and be open to new institutional forms.

Much development has been taking place on managing private disputes in
the international space in the area of Investor State Dispute Settlement
(ISDS). It has a history of many years, going back decades, especially
with the World Bank's The International Centre for Settlement of
Investment Disputes. Currently, most trade treaties have some ISDS
provisions. And jurisprudence in this area is evolving fast. The EU
recently proposed a two tier 'Investment Court System' populated by
regular judges. Domain related disputes are much less contentious that
investor-state disputes. Setting up a treaty based court for the purpose
of solving ICANN related dispute will not be difficult, and can be done
by the same treaty that sets the international law to incorporate ICANN
as an international body. It could perhaps even be possible to make
spaces within the International Court of Justice, by making suitable
amendments to its mandate. Many things are possible. We need to first
make value based choices and decide to move in that direction. You
cannot have systems and institutions all in place, ready to be switched
on pressing of a button, even before you make principles based decision
to move towards a more intentionally democratic and legitimate system.

>
> 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.
>

It is not as if non US countries have currently formally recognised
ICANN's US jurisdiction. But the system is working, isnt it. It would
still work with an international ICANN even with countries that may not
recognise and participate in the new arrangements. Though I dont see why
any country wont participate. Or are you thinking that some countries
may get so unhappy that ICANN has moved out of US jurisdiction to an
international one that they may withdraw from accepting ICANN's names
and numbers services? (Sorry, rhetorical).

>  
>
> My own views on this subject are quite clear
>

I hope mine are clear too. But always happy to explain and clarify
further. The email is already too long. I will respond to the points you
make below in a separate one, later..

regards, parminder

> – 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
> <mailto: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
> <mailto: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-california-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 <mailto:jordan at jordancarter.org.nz>
>
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