[CCWG-ACCT] premature jurisdiction debates

[parminder]

On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:
> There is no international corporate law. Therefore there is no means
> by which ICANN can be organized as a non-profit entity under
> international law but for a treaty arrangement such as that for the
> Red Cross.

Yes, it will be incorporated under special international law created for
that purpose.

> How long would that take,

First we have to just decide to do it (that is all to be done at this
stage - which can be done within weeks or a few months of discussion),
then let it take the needed time as long as everyone is working in good
faith... It can even be done in 6-12 months, a simple basic text that
incorporates existing ICANN functions and processes. There is a clear
incentive for those who wants things changed vis a vis US jurisdiction
to go through the process fast, and for those preferring the status quo
to keep the text short and as far as possible making an exact replica of
present ICANN at the international level. Once we agree on these
principles, things can move really fast. In the interim, of course the
status quo of US jurisdiction remains, and so there is no loss.

> what would that cost,

what kind of costs?

> and what is the justification?

This brings us to the square one of this discussion, while I thought
you/ we were moving forward. The simplest statement of the justification
is: a global Internet cannot be run by US law [no legislation (or
adjudication) without representation]. For implications of this
justification, you may try to answer the questions that I just asked
Nigel (and had earlier also asked you).

parminder
>
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
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>
> Twitter: @VlawDC
>
> "Luck is the residue of design." -- Branch Rickey
> *From:*wolfgang.kleinwaechter at medienkomm.uni-halle.de
> *Sent:*June 26, 2016 12:27 PM
> *To:*parminder at itforchange.net; asoto at ibero-americano.org;
> paul.rosenzweig at redbranchconsulting.com;
> accountability-cross-community at icann.org
> *Subject:*Re: [CCWG-ACCT] premature jurisdiction debates
>
>
> P:
> There is something called international law..... Like we are an
> international community working on an international issue, there is
> also international law.
>
> W:
> I am always perplexed that we have the same discussion again and
> again. The subject of international law is the state, represented by
> its government. Governments negotiate treaties. The primary source of
> international law is the Charter of the United Nations. The seven
> principles there - including sovereign equality of states - are seen
> as jus cogens. The rules for treaties are laid down in the the Vienna
> Convention on the Law of Treaties. Governments can delegate some
> rights - via an international treaty - to an intergovernmental
> organisation, as UNESCO, ITU and others.Such organizations become a
> subject sui generis under international law and can negotiate treaties
> with their host countries. Governments can also create international
> courts - as the International court of justice in The Hague or the
> Rome Statute. But in case of a conflict, the conflicting parties are
> governments, not private legal or natural persons. 
>
> This is rather different from what we have with ICANN. ICANN is a
> non-for profit private corporations which operates n the public
> interest. In its Articles of Incorporation ICANN makes clear that in
> operates within the framework of international law. That means ICANN
> respect the national sovereignty of states, does not interfere into
> internal affairs of other countries etc. But ICANN is not a subject
> under international law. Governments participate in ICANN in an
> advisory role. The role is specified in the bylaws. 
>
> If Parminder proposes an intergovernmental organizations for the
> governance of the Internet (or an intergovernmental framework
> convention for the domain name system) he should say so. Theoretically
> this is an option. Governments are free to negotiate anything as long
> as they find negotiation partners. It took 25 years to negotiate the
> 3rd Law of th Sea Convention. It took more than 20 years to negotiate
> the Rome Treaty. An the negotiations for a treaty on climate change
> started in the early 1990s. At this stage I do not see any intention
> of governments to enter into a new intergovernmental codification
> conference to negotiate an Internet treaty.  
>
> BTW, individuals can start a case against private corporations if
> those corporations violate their rights they have in the country where
> they live. The case Schrems vs. Facebook is a good example. Facebook
> is incorporated in the US but does business in Europe. The European
> Court of Justice decided that Facebook has to respect  the rights of
> privacy of Mr. Schrems, a citizen of Austria.
>
> Hope this helps to end this useless debate.
>
> Wolfgang
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