[Ws2-jurisdiction] Proposed Additional Question
Nigel Roberts
nigel at channelisles.net
Mon Dec 5 03:06:06 UTC 2016
I'm very much ad idem with Greg on this, who has set this out in much
more detail.
Kavouss asked what I was responding to. It was this
> Drafting proposal 3rd Paragraph, 2nd line: „ … specify whether
> those jurisdictions (incl. international law) would support …“
My reservation is simply that I am not grasping how a possible future
ICANN could be in under an international law jurisdiction without an
intergovernmental agreement of some sort (let's call it a Treaty) and an
agreement between ICANN and the country where it has its seat (let's
call that a host country agreement).
And, as I know this is the very scenario ICANN was set up in the form of
a private law, non-profit organisation to avoid, I can't yet see how
spending time and money on that concept advances matters much.
I must be missing something.
Is there another form of 'being under the jurisdiction under
international law' that ICANN could choose?
On 05/12/16 02:13, Greg Shatan wrote:
> 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
> <mailto: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 <tel:%2B43%201%204277%2035305>, Fax +43 1
> 4277 9353 <tel:%2B43%201%204277%209353>
> Erich.Schweighofer at univie.ac.at
> <mailto:Erich.Schweighofer at univie.ac.at>
> http://rechtsinformatik.univie.ac.at
> <http://rechtsinformatik.univie.ac.at>
>
> Von: Greg Shatan<mailto:gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>>
> Gesendet: Sonntag, 4. Dezember 2016 05:47
> An: ws2-jurisdiction at icann.org
> <mailto:ws2-jurisdiction at icann.org><mailto: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.
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>
> _______________________________________________
> Ws2-jurisdiction mailing list
> Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org>
> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
> <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
>
>
More information about the Ws2-jurisdiction
mailing list