[CCWG-ACCT] premature jurisdiction debates

Mon Jun 27 09:28:07 UTC 2016

Parminder,

On Sunday, 26 June 2016, parminder <parminder at itforchange.net> wrote:

>
>
> On Sunday 26 June 2016 06:08 PM, parminder wrote:
>
> Jordan
>
> You construct law as something fully technical when it actually is
> basically political, that is the major difference between your approach and
> mine.
>
>
> Wrong. Law is power, in its essence, nothing more and nothing less. I
don't know any way to see it differently. Please don't make assumptions
about my approach — we have barely exchanged anything on this or any other
topic.

In this arena tho, I don't see the public or founding law under which Icann
is established as being very relevant.

> What is the fact can however been seen in actual implications. Even the
> laws of incorporation that enables a non profit to organise and operate
> (for which there are admittedly little inter-jurisdiction differences)
> still mean that any incorporated organisation is full subject to every one
> of the thousands of public laws, about whom there are never any options.
>
>
> Undoubtedly. When you choose a jurisdiction you don't choose only those
laws you want.

> As you can see, most key domain name cases that ICANN is involved in
> pertain to public laws, and I have been making elaborate comments on that
> part. I asked a few questions to Nigel, very specific ones which would
> clarify the implications of the jurisdiction issue. Neither he or anyone
> else seems to be willing to respond to them. Maybe you can try. The
> implications of the jursidiction question wil come through very clearly...
>
>
>
It is worth saying I am not and have never been a lawyer. :-)

>
> Sorry, forgot to re state the questions. This also goes with the approach
> proposed by Pedro that we look first at scenarios and their implications on
> ICANN substantive policy remits.
>
> (1) What is ICANN's plan to do if it gets adverse US court judgements in
> .xxx and .africa cases (even  .ir is still in the courts)?
>

What do you mean by adverse? The courts I assume would rule against Icann
if it failed to follow its own process effectively but would not seek to
impose their judgement on substantive questions. But, see above about not
being a lawyer.

>
> Is there no plan at all, which would be absolutely inappropriate for a
> responsible organisation. Is the plan to just accept the judgements, and
> make necessary policy/ operational changes? If so, the world needs to know
> NOW, when jurisdiction is being discussed, and not realise later when the
> event happens, the enormity of US courts dictating global DNS policy. To
> repeat, ICANN must right away put forward its plan and position in this
> regard, which is an absolutely important, actually necessary, thing to know
> for those discussing the jurisdiction question as part of work stream 2.
>
>
This isn't a question per se. But whatever the jurisdiction, the only party
responsible for making sure Icann policy frameworks are well written and
legally robust, and that Icann follows them, is Icann. To the extent it
fails in those things it invites courts of any sort to be involved.

>
>
> (2) These above are existing cases, now with 100s of new gTLDs issued to
> every kind of organisation and for every kind of activity, you are going to
> get so many more cases in the US courts of the above kind. What do you plan
> vis a vis them?
>
>
I would hope ICANN's plan is to have clear policy and processes and to
follow them. That is all it can do. It is irrelevant what jurisdiction
applies - no matter where Icann was founded or established, the courts
could still be involved.

>
> Also, please see the hypothetical case in my last email, if rojadirecta
> takes .rojadirecta as a closed gTLD, and after some time, as they did once
> earlier through its US based registry, US authorities want to seize the
> .rojadirecta, which can now only be done at the root file level, and for
> that sends a order to ICANN, what would ICANN do? Again, necessary to know
> while we are in middle of jurisdiction decision
>

I don't know. I'm not a gtld person per se. Has the US ever successfully
'siezed' a TLD? Wouldn't the relevant registry keep operating anyway and
the technical community simply 'route around the damage' if Icann or the
root zone operator complied with US attempts?

Jordan

>
>
> Responses to these scenarios and their stated implications will be
> appreciated.. parminder
>
>
> best, parminder
>
> On Sunday 26 June 2016 04:31 PM, Jordan Carter wrote:
>
> Par minder,
>
> I see a distinction which you may not, but it might help clarify the
> points at debate.
>
> I see two layers here, for want of a better term. One is the actual work
> of ICANN's policy making, contract development and so on.  That's being
> done in a fashion supported by a corporation (ICANN the legal entity).
>
> The legal environment in which ICANN the corporation exists is California,
> USA.
>
> The first, the set of activities that ICANN actually does, are location
> agnostic. They could happen anywhere, in any jurisdiction. As long as that
> jurisdiction allowed the legal entity to organise itself as it saw fit,
> more or less, it'd be fine.
>
> The second, the legal environment, has to be somewhere. I take it from
> Wolfgang's comments and my own understanding, and actually from this email
> from you, that there's no "International Law" environment that could take
> the place of a national jurisdiction in which ICANN could base itself,
> unless such an international legal basis was created.
>
> For me, personally, the important point is that ICANN related decisions
> are made within the ICANN system. I am not fussed about the jurisdiction in
> which the corporation exists as a practical matter so long as that overall
> point is maintained.
>
> Since it would take years or decades to establish an international law
> basis under which ICANN could operate, even if it was at all possible,
> there needs to be *some* jurisdiction used.
>
> California seems fit for purpose in the sense that it has been able to
> accommodate the WS1 and Stewardship Transition frameworks agreed by the
> community.  The costs of doing all that again to move jurisdiction should,
> I think, only be entertained if there other currently undisclosed problems
> with CA, and benefits in another jurisdiction, that outweigh the costs of
> change.
>
> It's not clear to me that there are such advantages available anywhere
> given the flexibility of the CA framework. Doesn't mean they don't exist
> tho, just that I don't see them :-)
>
> If this is a matter of politics per se, then I guess I just don't identify
> with that as significant. ICANN could be incorporated as a non profit in
> New Zealand, or India, or the United States -- I really don't mind.  As
> long as the rule of law was clear, the courts were available and competent,
> and the rules allowed the organisation to be what it needs to be -- why
> does the particular nationality of the entity in its legal reality matter?
>
> best
> Jordan
>
> I think the following points are uncontroversial
>
> On 26 June 2016 at 12:16, parminder <parminder at itforchange.net
> <javascript:_e(%7B%7D,'cvml','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
>> 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:*
>> <javascript:_e(%7B%7D,'cvml','wolfgang.kleinwaechter at medienkomm.uni-halle.de');>
>> wolfgang.kleinwaechter at medienkomm.uni-halle.de
>> <javascript:_e(%7B%7D,'cvml','wolfgang.kleinwaechter at medienkomm.uni-halle.de');>
>> *Sent:*June 26, 2016 12:27 PM
>> *To:* <javascript:_e(%7B%7D,'cvml','parminder at itforchange.net');>
>> parminder at itforchange.net
>> <javascript:_e(%7B%7D,'cvml','parminder at itforchange.net');>;
>> <javascript:_e(%7B%7D,'cvml','asoto at ibero-americano.org');>
>> asoto at ibero-americano.org
>> <javascript:_e(%7B%7D,'cvml','asoto at ibero-americano.org');>;
>> paul.rosenzweig at redbranchconsulting.com
>> <javascript:_e(%7B%7D,'cvml','paul.rosenzweig at redbranchconsulting.com');>;
>> accountability-cross-community at icann.org
>> <javascript:_e(%7B%7D,'cvml','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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>>
>
>
> --
> Jordan Carter
> Wellington, New Zealand
>
> +64 21 442 649
> jordan at jordancarter.org.nz
> <javascript:_e(%7B%7D,'cvml','jordan at jordancarter.org.nz');>
>
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing listAccountability-Cross-Community at icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community at icann.org');>https://mm.icann.org/mailman/listinfo/accountability-cross-community
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>
>

-- 
Jordan Carter
Wellington, New Zealand

+64 21 442 649
jordan at jordancarter.org.nz
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