[CCWG-ACCT] premature jurisdiction debates

[Karel Douglas]

Good discussion. All points are valid.

Thanks to Wolfgang for his explanation.

It is a complex issue - The pros and cons have to be weighed up... assessed
and then determined what is the best possible jurisdiction. We must look at
other similar bodies to ICANN and determine why some countries such as
Switzerland, Belgium, USA , etc attract international bodies such as ICANN,
IRC , ITU, the UN , etc.

regards

Karel DOUGLAS

On Mon, Jun 27, 2016 at 12:55 PM, Phil Corwin <psc at vlaw-dc.com> wrote:

> +1 with enthusiasm
>
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
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>
> "Luck is the residue of design." -- Branch Rickey
> *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
> paul.rosenzweig at redbranchconsulting.com
> O: +1 (202) 547-0660
> M: +1 (202) 329-9650
> VOIP: +1 (202) 738-1739
> www.redbranchconsulting.com
> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
>
> -----Original Message-----
> From: "Kleinwächter, Wolfgang"
> [mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de
> <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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