[Ws2-jurisdiction] Proposed Additional Question

Mon Dec 5 02:13:26 UTC 2016

Erich, Nigel and all,

"International law" gets us into a bit of a morass.  First, we need to
define what is meant by "international law."  "International law" is often
used to mean the laws that governs relations between states; this is
sometimes called "public international law."  Public international law (or
international public law) concerns the treaty relationships between the
nations and persons which are considered the subjects of international law.
Norms of international law have their source in either: custom, or
customary international law (consistent state practice accompanied by
opinio juris), globally accepted standards of behavior (peremptory norms
known as jus cogens or ius cogens), or codifications contained in
conventional agreements, generally termed treaties.
https://en.wikipedia.org/wiki/International_law#Public_international_law.
Public
international law issues can include the law of treaties, international
responsibility, State succession, State and diplomatic immunities, the law
of international organizations, international investment law, international
human rights law, the law of the sea and international trade law.
https://www.clearygottlieb.com/practice-landing/public-international-law

"Private international law," by contrast typically refers to relations
between private entities.  One definition is: Private International Law is
the legal framework composed of conventions, protocols, model laws, legal
guides, uniform documents, case law, practice and custom, as well as other
documents and instruments, which regulate relationships between individuals
in an international context.
http://www.oas.org/dil/private_international_law.htm  On the other hand
"private international law" is sometimes defined as being the same as
"conflict of laws" -- dealing with situations about which law applies to
disputes between private parties of different nations and/or where there
are contacts with other nations and/or courts.

The relationship between international law and the tasks of this subgroup
is not entirely clear, at least not to me, and I tend to think a reference
to international law would further muddle this question.  But we should be
open to some further discussion on the matter.

Greg

On Sun, Dec 4, 2016 at 5:04 AM, Nigel Roberts <nigel at channelisles.net>
wrote:

> I'm slightly puzzled about this.
>
> Under what circumstances could ICANN's jurisdiction be  (a) under
> 'international law' and (b) not under the law of a particular state (for
> these purposes it doesn't matter if that state is the USA 0 as currently
> -,  Switzerland, or Transdniestr).
>
> My understanding is that international law only applies between states
> (this comes from my originating in a dualist state), and therefore for
> ICANN to be under 'international law', there would need to be a founding
> Treaty, subscribed to by Member States,  and a Host Country Agreement
> specifying the privileges and immunities of the organisation.
>
> In otherwords, ICANN would become multilateral, instead of
> multistakeholder.
>
> And I thought that's what we'd just spent 20 years avoiding.
>
> Please expand on your thinking!
>
>
>
> On 04/12/16 09:48, Schweighofer Erich wrote:
>
>> Greg,
>>
>> Nice work. I support this additional question, but would not exclude
>> international law as such. There is some preliminary research work showing
>> the challenges and encouraging the status quo. The argumentation line would
>> be clearer.
>>
>> Drafting proposal 3rd Paragraph, 2nd line: „ … specify whether those
>> jurisdictions (incl. international law) would support …“
>>
>> Best, Erich
>>
>> ao. Univ.-Prof. Mag. DDr. Erich Schweighofer
>> Arbeitsgruppe Rechtsinformatik
>> Institut für Europarecht, Internationales Recht und
>> Rechtsvergleichung, Universität Wien
>> Schottenbastei 10-16/2/5, 1010 Wien, AT
>> Tel. +43 1 4277 35305, Fax +43 1 4277 9353
>> Erich.Schweighofer at univie.ac.at
>> http://rechtsinformatik.univie.ac.at
>>
>> Von: Greg Shatan<mailto:gregshatanipc at gmail.com>
>> Gesendet: Sonntag, 4. Dezember 2016 05:47
>> An: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
>> Betreff: [Ws2-jurisdiction] Proposed Additional Question
>>
>> All,
>>
>> On the list and the most recent Jurisdiction Subgroup call, we have been
>> discussing a proposal to add another question to the questionnaire being
>> prepared by this group. Specifically, we've been discussing
>>
>> 1.  Whether this question should be sent out by the Subgroup; and
>>
>> 2.  The drafting of the question.
>>
>> On the first point, there was a fairly even split (among the few who
>> responded) on the call.  On the list, there were about twice as many
>> responses opposed to sending the question, at least as originally drafted.
>>
>> Before revisiting whether to send the question out, we should continue to
>> refine the question, so that it's clear what proposed question we're
>> considering.
>>
>> I've gone through the email thread discussing this question, and I've
>> pulled out the various formulations of the question.  I've also pulled out
>> the comments that had suggestions regarding the scope and wording of the
>> question.  These appear directly below.  That way, we can all see how the
>> discussion evolved on the list. Taking into account the various
>> formulations and the various comments, as well as the language of Annex 12,
>> I've prepared the following proposed formulation for the Group's review and
>> comment:
>>
>>
>> Fourth proposed formulation
>> What do you think are the advantages or problems, if any, relating to
>> ICANN being under U.S. jurisdiction and subject to U.S. and California law,
>> particularly with regard to the actual operation of ICANN’s policies and
>> accountability mechanisms?
>> Please support your response with appropriate examples, references to
>> specific laws, case studies, other studies, and analysis.  In particular,
>> please indicate if there are current or past instances that highlight such
>> advantages or problems.  Also, in terms of likely future risk, please
>> mention specific ways in which U.S. or California laws safeguard or
>> interfere with, or are likely to be used or interfere with, ICANN's ability
>> to carry out its policies throughout the world.
>> For any problem identified, please identify other jurisdictions, if any,
>> where that problem would not occur.  For each such jurisdiction, please
>> specify whether those jurisdictions would support the outcomes of
>> CCWG-Accountability Work Stream 1, identify the future risks of those
>> jurisdictions, and discuss the risks associated with changing jurisdictions.
>>
>> PLEASE REPLY TO THIS EMAIL WITH YOUR COMMENTS AND FURTHER PROPOSED
>> REVISIONS.  Thank you.
>>
>> Greg
>>
>> Original proposed formulation:
>> What do you think are the problems, if any, with continued jurisdiction
>> of the US state over ICANN, as a US non-profit? Please justify your
>> response with appropriate examples, analysis, etc. Especially, if there are
>> existing and past instances that highlight such problems please indicate
>> them.
>> Comment:
>> It should, however, be made by specific reference to existing laws that
>> could be used to interfere with ICANN's ability to provide service to
>> customers in other countries.
>> Comment:
>> If we were to go in this direction we would also need to add something
>> like "What do you think the problems would be, if any, of changing
>> jurisdiction..."
>> Second proposed formulation:
>> What do you think are the problems, if any, with continued jurisdiction
>> of the US state over ICANN, as a US non-profit? Please justify your
>> response with appropriate examples, analysis, etc. Especially, please
>> indicate if there are existing and past instances that highlight such
>> problems. Also, in terms of future likelihood, please mention specific
>> institutions/ laws etc of the US state that could be used to interfere with
>> ICANN's ability to provide global governance services to all people of the
>> world, including in non US countries.
>> Comment:
>> An unbiased question would also ask about advantages and protections, and
>> ways in which the current jurisdictional arrangement supports ICANN's
>> ability to carry out its mission.  I also find the focus on the concept of
>> the "jurisdiction of the US state over ICANN," to be quite puzzling.  The
>> primary focus of this group has been on the effects of "governing law"
>> (whether it results from a legal or physical location of ICANN or from a
>> contractual provision, etc.)  and not on some idea that the US Government
>> is somehow poised to strike and exercise unilateral power over ICANN in
>> some undefined (and possibly non-existent) fashion.
>> Comment:
>> I would oppose this as it relates to future risks unless the responders
>> also identified other potential jurisdictions where those future risks
>> would not be realized and assessed the future risks of those potential
>> jurisdictions of transfer.
>> Third proposed formulation/comment:
>> What do you think are the problems, if any, with continued jurisdiction
>> of the US state over ICANN, as a US non-profit? Please justify your
>> response with appropriate examples, analysis, etc.
>> ... with appropriate examples, references to specific laws, case and
>> other studies, analysis, ...
>>  Especially, please indicate if there are existing and past instances
>> that highlight such problems. Also, in terms of future likelihood, please
>> mention specific institutions/ laws etc of the US state
>> I think it might be good to couch this in terms of risk analysis.  Risk
>> is real and analyzing it is a common activity.
>> Also in terms of likely risk, please ...
>> that could be used to interfere with ICANN's ability to provide global
>> governance services to all people of the world, including in non US
>> countries.
>> Comment:
>> If we are going to allow speculation as to potential future issues that
>> have not arisen and may never arise based on analysis that is grounded only
>> in theory without any connection to practice then the natural question is
>> whether those speculative harms would be ameliorated by changing
>> jurisdiction and also whether changing would give rise to other, different,
>> speculative harms.  If we want to just guess, let's guess not only about
>> the horrors of remaining in the US, but also the horrors of moving.
>>
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