[Ws2-jurisdiction] Proposed Additional Question
Erika Mann
erika at erikamann.com
Mon Dec 5 15:48:53 UTC 2016
Good morning -
I'm very much in line with Greg's approach.
Following the debate now passively for a while, I wonder if it wouldn't help those that want to see more done in this area, if we wouldn't get a simple map that would explain the current legal situation. I think part of the intellectual challenge we are facing is that some are looking at (real or perceived) potential legal challenges from a political perspective, while others are looking at it from a business and/or legal perspective. An overview might help those that look at it from a political perspective.
What do I mean?
If we look at ICANN related 'international law' legal challenges, they might group around the following topics:
1) privacy (US privacy laws - EU privacy laws - other dominant national laws - international agreements that impact ICANN - relevant court cases - etc.) (identity real or potential problems, for example: A) international implications of national laws, extra-territorial effects. B) new Privacy Shield agreement between EU & US, how is it impacting our environment and is there something ICANN can and must do to help registrars/registries. C) new WHOIS. D) other challenges)
2) security
3) IPR
4) content liabilities
5) others
My sense is that instead of continuing a largely intellectual debate, such a mapping exercise would help all players. This is a typical work a law firm can do that is familiar with our environment. And since they've done this many times for clients with similar backgrounds (Internet related firms/headquartered in the US but with exposure to other national legal norms), they will 'only' have to add ICANN specifications.
Happy to help!
Erika
Sent from my iPhone
> On Dec 4, 2016, at 8:06 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-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.
>>
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