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<font face="Verdana">Jordan<br>
<br>
You construct law as something fully technical when it actually is
basically political, that is the major difference between your
approach and mine. 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.
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...<br>
<br>
best, parminder <br>
</font><br>
<div class="moz-cite-prefix">On Sunday 26 June 2016 04:31 PM, Jordan
Carter wrote:<br>
</div>
<blockquote
cite="mid:CAEO10ggHQo=6f6gtFKChyUMmXG=zwfp8ghukCwYbFA-2NG3vQw@mail.gmail.com"
type="cite">
<div dir="ltr">Par minder,
<div><br>
</div>
<div>I see a distinction which you may not, but it might help
clarify the points at debate.</div>
<div><br>
</div>
<div>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).</div>
<div><br>
</div>
<div>The legal environment in which ICANN the corporation exists
is California, USA.</div>
<div><br>
</div>
<div>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.</div>
<div><br>
</div>
<div>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.</div>
<div><br>
</div>
<div>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.</div>
<div><br>
</div>
<div>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. </div>
<div><br>
</div>
<div>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.</div>
<div><br>
</div>
<div>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
:-)</div>
<div><br>
</div>
<div>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?</div>
<div><br>
</div>
<div>best</div>
<div>Jordan</div>
<div><br>
</div>
<div>I think the following points are uncontroversial</div>
</div>
<div class="gmail_extra"><br>
<div class="gmail_quote">On 26 June 2016 at 12:16, parminder <span
dir="ltr"><<a moz-do-not-send="true"
href="mailto:parminder@itforchange.net" target="_blank">parminder@itforchange.net</a>></span>
wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0
.8ex;border-left:1px #ccc solid;padding-left:1ex">
<div text="#000000" bgcolor="#FFFFFF"><span class=""> <br>
<br>
<div>On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:<br>
</div>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> 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. </div>
</div>
</blockquote>
<br>
</span> Yes, it will be incorporated under special
international law created for that purpose.<span class=""><br>
<br>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto">How long would that
take,</div>
</div>
</blockquote>
<br>
</span> 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.<br>
<br>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> what would that cost,</div>
</div>
</blockquote>
<br>
what kind of costs?<span class=""><br>
<br>
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> and what is the
justification?</div>
</div>
</blockquote>
<br>
</span> 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).<span
class="HOEnZb"><font color="#888888"><br>
<br>
parminder <br>
</font></span>
<div>
<div class="h5">
<blockquote type="cite">
<div
style="line-height:initial;background-color:rgb(255,255,255)">
<div name="x_BB10" dir="auto"> <br
style="display:initial">
</div>
<div name="x_BB10" dir="auto">
<div name="x_BB10" dir="auto"> Philip S. Corwin,
Founding Principal<br>
Virtualaw LLC<br>
1155 F Street, NW<br>
Suite 1050<br>
Washington, DC 20004<br>
202-559-8597/Direct<br>
202-559-8750/Fax<br>
202-255-6172/Cell<br>
<br>
Twitter: @VlawDC<br>
<br>
"Luck is the residue of design." -- Branch
Rickey</div>
</div>
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<div>
<div><b>From:</b><a
moz-do-not-send="true"
href="mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de"
target="_blank"><a class="moz-txt-link-abbreviated" href="mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de">wolfgang.kleinwaechter@medienkomm.uni-halle.de</a></a></div>
<div><b>Sent:</b>June 26, 2016 12:27
PM</div>
<div><b>To:</b><a
moz-do-not-send="true"
href="mailto:parminder@itforchange.net"
target="_blank"><a class="moz-txt-link-abbreviated" href="mailto:parminder@itforchange.net">parminder@itforchange.net</a></a>;
<a moz-do-not-send="true"
href="mailto:asoto@ibero-americano.org"
target="_blank">asoto@ibero-americano.org</a>;
<a moz-do-not-send="true"
href="mailto:paul.rosenzweig@redbranchconsulting.com"
target="_blank">paul.rosenzweig@redbranchconsulting.com</a>;
<a moz-do-not-send="true"
href="mailto:accountability-cross-community@icann.org"
target="_blank">accountability-cross-community@icann.org</a></div>
<div><b>Subject:</b>Re: [CCWG-ACCT]
premature jurisdiction debates</div>
</div>
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<font size="2"><span style="font-size:10pt">
<div>P:<br>
There is something called international
law..... Like we are an international
community working on an international issue,
there is also international law.<br>
<br>
W:<br>
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. <br>
<br>
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. <br>
<br>
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. <br>
<br>
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. <br>
<br>
Hope this helps to end this useless debate. <br>
<br>
Wolfgang<br>
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<br>
<br clear="all">
<div><br>
</div>
-- <br>
<div class="gmail_signature" data-smartmail="gmail_signature">Jordan
Carter
<div>Wellington, New Zealand</div>
<div><br>
</div>
<div>+64 21 442 649 </div>
<div><a moz-do-not-send="true"
href="mailto:jordan@jordancarter.org.nz" target="_blank">jordan@jordancarter.org.nz</a></div>
<div><br>
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