[CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
parminder
parminder at itforchange.net
Tue Jun 21 14:22:31 UTC 2016
On Sunday 19 June 2016 09:17 PM, Phil Corwin wrote:
> snip
>
>
>
> My own views on this subject are quite clear – see
> http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_jurisdiction/
> :
>
Phil, I now have some time to respond to your below points as well.
> /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/
>
/When we are talking about changing the very incorporation of ICANN,
changing its fundamental bylaws is a rather small matter in comparison.
//A ICANN under a new jurisdiction is legally a new body, although it
could carry along all the baggage - good and bad - that it "wants" to
carry from the earlier avataar, to maintain the obviously needed
continuity. But then changing fundamental bylaws in such a context is
not such a big problem.
/
>
> * //
> * /The accountability plan has been designed to be maximally
> effective in the context of California law/
>
/Well, in that case ( also following from your above point), are you
saying that the claim by those conducting the transition process that
the jurisdiction question is still open is basically a bluff? Anyway,
we have the essential design of the accountability plan and it can be
made to work in any new jurisdiction as easily, especially an
international one which will be based on newly created and tailor-made
international law which can incorporate this plan.
/
>
> * //
> * /The U.S. legal system is well regarded for its dedication to
> objective determinations under the rule of law/
>
/Actually, I like the Indian legal system :). (It for instance does not
think corporates have human rights on par with natural persons :). I am
referring to the Citizens United case.). the 'law' under which the US
legal system makes objective determinations is the US law, which is
different from, say, the Indian law. The outcome of objective
determinations will differ according to which law is employed. That is
the point. I would much like my claims with regard to the global DNS to
be adjudicated under a law in which I have some kind of role in making,
and consider legitimate to apply to me - so I think would be for all non
US people. That would either be one's own country law or international 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./
>
You are disregarding the number of websites seized under various
pretexts by US gov, by ordering the concerned registries. (And the
drastic though indirect steps taken to close down wikileaks.) If now it
is a gTLD - with thousands of them granted - that falls foul of the same
US authorities for a similar cause, no registry can help, and so the
same order will go to ICANN to remove the offending gTLD. (Can you
refute this line of argument? ) It is simply the US law, that MUST be
enforced, multistakeholderist niceties aside. Therefore, excuse my
words, but such statements as you make about the superiority of US law
are mere propaganda that no one outside the US takes seriously. Though
you are allowed your patriotism :).
parminder
>
> * //
>
>
>
> snip
>
>
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>
>
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>
> *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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