[CCWG-ACCT] premature jurisdiction debates

[Phil Corwin]

+1 with enthusiasm

Philip S. Corwin, Founding Principal
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From:paul.rosenzweig at redbranchconsulting.com
Sent:June 27, 2016 4:17 PM
To:'Kleinwächter; wolfgang.kleinwaechter at medienkomm.uni-halle.de; parminder at itforchange.net; asoto at ibero-americano.org; accountability-cross-community at icann.org
Subject:Re: [CCWG-ACCT] premature jurisdiction debates


+1 Wolfgang ... +1 indeed.

Paul Rosenzweig
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-----Original Message-----
From: "Kleinwächter, Wolfgang"
[mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de]
Sent: Sunday, June 26, 2016 5:24 AM
To: parminder <parminder at itforchange.net>; Alberto Soto
<asoto at ibero-americano.org>; Paul Rosenzweig
<paul.rosenzweig at redbranchconsulting.com>;
accountability-cross-community at icann.org
Subject: AW: [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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