[CCWG-ACCT] RES: premature jurisdiction debates

Sun Jun 26 12:41:56 UTC 2016

Dear Guru,

My suggestion is that we tackle the issue of jurisdiction from a perspective slightly different than the one you presented below.

Since in our report we have clearly indicated that our main broad concern is about the "Influence that ICANN’s existing jurisdiction may have on the actual operation of policies and accountability mechanisms", we should examine all the scenarios through which ICANN's operations may be affected by the jurisdiction(s) it is subject to (e.g. government sanctions, labour law, governing law for contracts, etc) and evaluate to what extent those "obligations" may exercise undue interference in ICANN's global policy-based operations.

This initial assessment is key so that we can have a clear idea of (i) all the different facets of jurisdiction and (ii) which of those facets really matter when it comes to enhancing ICANN's responsibility as an entity with a global remit   (which involves - to the extent possible - not being subject to unilaterally imposed obligations defined outside the global multistakeholder community).

That being said, I wouldn't assume from the start that any subject is off the table. We just need to bear in mind that we have a new accountability system set up and that we need to check to what extent this "new ICANN" is able to cope with the jurisdiction-related issues to be identified in WS2. Then, we should look for possible alternatives to improve this "new ICANN".
In this exercise, it is fundamental not to anticipate any result.

Regards,

Pedro

________________________________
De: accountability-cross-community-bounces at icann.org [accountability-cross-community-bounces at icann.org] em nome de Guru Acharya [gurcharya at gmail.com]
Enviado: domingo, 26 de junho de 2016 8:15
Para: Accountability Cross Community
Assunto: Re: [CCWG-ACCT] premature jurisdiction debates

The following are my inferences from today's lightening talks on jurisdiction:

1) There will clearly be a concerted effort to incorporate a principle stating that "WS2 can not undo WS1". Since WS1 is embedded in California Law, any discussion on jurisdiction of incorporation in WS2 will effectively be foreclosed. Unfortunately, this ignores the fact that when the bucket list for WS1 and WS2 was created, it was never implied that WS2 is less important than WS1, or that in case of conflict between WS1 and WS2, the decisions of WS1 would prevail. The only distinction at that time was that WS1 will help achieve WS2 after the transition. I believe any change in that would violate to the conditions put forth at that juncture.

2) Jurisdiction will be recognised as a multi-layered issue not just limited to place of incorporation.  The following layers will be discussed:

Layer 1: Jurisdiction of incorporation & operations, including - tax system, human resources, etc.
Layer 2: Jurisdiction of physical presence
Layer 3: Jurisdiction about contractual relationships: governing law for contracts with registrars and registries and ability to sue and be sued
Layer 4: Jurisdiction to sue and be sued for action & inaction of Staff, and for redress and review of Board Decisions, IRP, and other Accountability and Transparency issues, including AoC
Layer 5: relation with the national jurisdictions for particular domestic issues (ccTLD´s managers, protected names either for International Institutions or Country and other geographic names, national security, etc.), privacy, freedom of expression

Interference by non-US state actors will also be included in the discussion with respect to Layers 3 to 5.

The chairs were categorical in their understanding that Layer 1 on jurisdiction of incorporation has already been decided in WS1 and any change in it will upset WS1. Thus, in the upcoming discussions, all layers will be discussed except for Layer 1 which is the jurisdiction of incorporation. This is ironical because the entire political context for the IANA transition is based on Layer 1 of jurisdiction.

On Sun, Jun 26, 2016 at 3:46 PM, parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>> wrote:

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
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From:wolfgang.kleinwaechter at medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>
Sent:June 26, 2016 12:27 PM
To:parminder at itforchange.net<mailto:parminder at itforchange.net>; asoto at ibero-americano.org<mailto:asoto at ibero-americano.org>; paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>; accountability-cross-community at icann.org<mailto: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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