[CCWG-ACCT] RES: premature jurisdiction debates
parminder
parminder at itforchange.net
Mon Jun 27 15:00:03 UTC 2016
On Monday 27 June 2016 06:43 PM, Paul Rosenzweig wrote:
>
> I would respectfully disagree Pedro – the question is not about
> ICANN’s existing jurisdiction alone. It must be about any alternative
> as well – and that alternative needs to be a concrete proposed one
> (e.g. move ICANN to Turkey, or Egypt) and not about some theoretical
> construct that has no basis in realistic appraisals. If you want to
> have more than one alternative I’m fine with that – but you can’t just
> ask the question of “what are the problems we might encounter where we
> are” without also asking “and will that change if we change?”
>
I agree with you Paul. Full implications of both 'where we are' and
'what is proposed' should be considered at the same time.
But still making a start with fully understanding and accepting the
implications of 'where we are' remains important. Let there be no denial
of those implications. Once we accept them, it is ok to say, yes this
may be a problem, but show me a better solution. If we cannot refuse to
bring out the implications of 'what may be proposed', much less can we
refuse to accept all implications of 'where we are'. The problem is that
there is a huge amount of denial wrt the issues with the current
arrangement. I posed those two questions that I did a few times now, and
there are others. I am happy to hear your professional lawyerly view on
it, and also of our appointment legal advisor - bringing out the full
implications of the scenarios that have been posted. Why cant we do that?
Fine if one can show that the situations posed in my questions can be
dealt with without any actual 'interference' of US jurisdiction in
ICANN's global policy functions.
I am even fine if people say, well, if the courts so decide, ICANN will
indeed have to change its policy decisions (or if US customs insist on
seizing a gTLD like 'rojadirecta, from my example, ICANN will indeed
have to comply) but then this situation is no worse than what would
obtain in any other proposed solution. Or, even if a proposed solution
solves this specific problem, it brings this and this bigger problems,
and the trade off is negative.
That would be being fair to both sides. And a proper consideration of an
issue that we are now mandated to consider.
parminder
>
>
> Cheers
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
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>
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>
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Pedro Ivo Ferraz da Silva
> *Sent:* Sunday, June 26, 2016 8:42 AM
> *To:* Guru Acharya <gurcharya at gmail.com>; Accountability Cross
> Community <accountability-cross-community at icann.org>
> *Subject:* [CCWG-ACCT] RES: premature jurisdiction debates
>
>
>
> 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
> <mailto: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
> 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:*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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