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<font face="Verdana">Hi Wolfgang<br>
<br>
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. <br>
</font><br>
<div class="moz-cite-prefix">On Sunday 26 June 2016 02:54 PM,
"Kleinwächter, Wolfgang" wrote:<br>
</div>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap="">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. </pre>
</blockquote>
<br>
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). <br>
<br>
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). <br>
<br>
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. <br>
<br>
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.)<br>
<br>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap="">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. </pre>
</blockquote>
<br>
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. <br>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap="">
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. </pre>
</blockquote>
<br>
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?<br>
<br>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap="">
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.</pre>
</blockquote>
<br>
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. <br>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap=""> 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. </pre>
</blockquote>
<br>
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. <br>
<br>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap="">
BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live.</pre>
</blockquote>
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.<br>
<br>
parminder <br>
<br>
<blockquote
cite="mid:2DA93620FC07494C926D60C8E3C2F1A801D3AC16@server1.medienkomm.uni-halle.de"
type="cite">
<pre wrap="">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
</pre>
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