[CCWG-ACCT] premature jurisdiction debates

[parminder]

Hi Wolfgang

I did not respond to your email earlier because I would not normally
respond to an email that begins by calling a discussion unnecessarily
repetitive, and ends by describing it as useless. However, since your
post has earned so many enthusiastic +1s, I fear it may seem to some as
a conclusive, unchallenged, argument against the case that I presented
about ICANN's jurisdiction. For that reason I need to respond to it, as
below.

On Sunday 26 June 2016 02:54 PM, "Kleinwächter, Wolfgang" wrote:
> 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. 

If we are to work on solutions to the problems that we face, we need to
look towards directions of innovations where such solutions could lie,
not look to where they do not. I have been describing Investor State
Dispute Settlement systems being incorporated in most trade treaties -
which are inter/pluri-lateral instruments and law. The subject here is
the investor being afforded protection from state policies. These are
supposed to protect investor's rights, who are legal persons and not
states. There is accordingly no reason why we cannot have international
law that protects individual and business rights vis a vis a
international body (that ICANN should become under international law).

To repeat, there is absolutely no problem with developing an
international treaty that writes international law, which will make
ICANN an international body, but with exactly the same governance and
other processes (multistakeholder) as exist at present, and also provide
means to ensure that individuals/ businesses interests and rights vis a
vis ICANN are protected through a special court system that is set up by
the same treaty. (As the EU is proposing a new international court
system for Investor State Dispute Settlement).

I am ready for a full-fledged discussion on this issue, on how such an
international law can indeed be created, or alternatively, why and how
it cannot be.

Please tell me where you find gaps, and I will respond accordingly. (the
system would have space to incorporate international private law, and if
required ICANN and registries given choice for national jurisdiction for
contract related disputes - preferably it should be the country of
incorporation of the registry. However, there would be complete immunity
from any enforcement of public laws of the country - US - where it is
headquartered - other than the trivial routine stuff which all host
country agreements allow.)

> 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.  

As mentioned, in the case of Investor State Disputes Settlement bodies/
courts, one of the conflicting party is a legal person. We need to look
at where innovation is happening not at deep history alone.
>
> 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.  

ICANN is fully subject to US laws, and executive action. I had posed two
scenarios, pl respond to them. Can you say that the scenarios are false,
or ICANN will actually refuse to comply with US court or legitimate
executive order, or whether it would comply and change its DNS policy/
action accordingly? It has to be one of these options. Which one? Why no
one commits on it?

>
> 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.

What I propose I have said clearly . No, it is *not* an intergov
management of the DNS and other ICANN functions; it is keeping exactly
the same function and governance processes (multi-stakeholder) of ICANN
as now, but under international law and not US law.
>  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.  

These processes were trying to bring into being a new institutional
system. In the present case, we already have one, we just want to change
its covering/ incorporating law from US to international - without
changing the rest of institutional design. Should not take long. And
unlike what you say, non US gov do not agree with the current US
jurisdiction on ICANN. They did not during WSIS ten years ago, they
still do not.

>  
> BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live.
They can start it, but with no effect whatsoever. ICANN would not even
appear as a respondent. Just try it. Facebook case below is different.
Unlike ICANN, FB has to maintained big business presence in France, as
in every big country, and thus a ruling over it can be enforced. ICANN
has no such constrains, and would not subject itself to any such foreign
court cases.

parminder

> 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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