[Ws2-jurisdiction] Proposed Additional Question
Greg Shatan
gregshatanipc at gmail.com
Mon Dec 5 05:04:27 UTC 2016
Here's a slight change to the footnote, for accuracy and grammar's sake.
The formulation is otherwise unchanged. This change will also be made in
the footnote to the "experience solicitation" questions.
Greg
*Fourth Formulation -- Second Draft*
What are the advantages or disadvantages, if any, relating to ICANN's
jurisdiction*, 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. In terms of likely future risk, please mention
specific ways in which U.S. or California laws safeguard or interfere with,
or may be used to safeguard or interfere with, ICANN's ability to carry out
its policies throughout the world.
For any disadvantage identified, please identify alternatives (including
other jurisdictions), if any, where that problem would not occur. For each
such jurisdiction or other alternative, please specify whether and how it
would support the outcomes of CCWG-Accountability Work Stream 1, identify
the risks of those jurisdictions or other alternatives, and discuss the
risks associated with changing from the current situation.
_________________
* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being
subject to U.S. and California law as a result of its incorporation and
location in California, (b) ICANN being subject to the laws of any other
country as a result of its location *within *or contacts with that country,
or (c) any “choice of law” or venue provisions in agreements with ICANN.
On Sun, Dec 4, 2016 at 10:06 PM, Nigel Roberts <nigel at channelisles.net>
wrote:
> 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-inter
>> national-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@
>> 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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