[Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN

Thu Aug 17 08:59:39 UTC 2017

Dear Parminder,

Could you precise two points of your submission:

1. I do not see what you would want to prevent with your proposed
immunity: *"such
unilateral availability and use of legal state power with one country, the
US, over ICANN is untenable, and goes against basic principles of democracy
including of "no legislation/ policy without representation". These
principles are recognised by UN instruments as human rights, and most
countries today including the US are built over them."*

2. How would being subject to the California Corporations Code articulate
itself with being immune? In fact this point is related to the first one.
The CCC serves as a basic framework of corporate governance, something
which is absent from most if not all international organisations. It
imposes duties on ICANN and its constituents (board, etc.) and gives to
some persons to sue ICANN over these. A blanket immunity would negate this.

So yes this brings me back to the first point: what kind of situations are
you afraid of? The submissions you link convey a general sense of a threat
coming from "US laws" without pinpointing what ICANN was not able to do by
virtue of being in the US (to the exclusion of any other factor). I believe
that US corporations law is probably one of the most liberal in the world
and in that sense, it leaves a lot to ICANN to decide for itself rather
than dictating what it should do.

2017-08-16 10:36 GMT+02:00 parminder <parminder at itforchange.net>:

> Issue:
>
> Various branches and agencies of the United States of America - from
> judicial and legislative to executive, including its many regulatory
> agencies - have exclusive (like no other country's) direct legal remit and
> power over ICANN, as a US non-profit organisation, with respect to
> practically every aspect that can conceivably be affected by state power
> (their range is so enormous that it is vain to begin listing them). These
> agencies/ y can and do exercise them at any time in pursuance of US law and
> policies, that have the primary purpose to uphold US public interest and US
> constitution. Many examples of such powers and their possible use have been
> given in various public submissions
> <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to
> this group, including this one
> <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>
> , and also this
> <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>.
> Since ICANN is supposed to make policies and implement them with regard to
> the global DNS in the global public interest and not just US public
> interest, such unilateral availability and use of legal state power with
> one country, the US, over ICANN is untenable, and goes against basic
> principles of democracy including of "no legislation/ policy without
> representation". These principles are recognised by UN instruments as human
> rights, and most countries today including the US are built over them.
>
> Proposed solution:
>
> ICANN be granted immunity under the International Organisations Immunities
> Act of the US. This immunity should be tailored/customised in a manner that
> ICANN still remains subject to non profit law of the state of California
> under which it is registered, and its organisational processes function,
> and other such US laws and institutions that are strictly required for
> ICANN to be able to satisfactorily carry out its organisational, policy and
> technical functions (an assessment with respect to which should be
> undertaken asap).
>
>
> Additional notes:
>
> If I may add, this has been "THE" jurisdiction question since the WSIS
> days if not earlier ( actually since the time ICANN was formed). Whether or
> not we are able to agree to recommending any solution to this jurisdiction
> question, it will be an unacceptable travesty of facts and history if this
> group does not accept this as an important, if not "THE", jurisdiction
> question in relation to ICANN.
>
> Whether or not this group is able to contribute to global public interest
> by making any positive progress on the question of ICANN's jurisdiction,
> following the principles of good governance and democracy, let it not
> regress and actually serve to obfuscate what is seen and known as the
> "ICANN's jurisdiction" question by everyone, by the global public at large.
> (For instance, in ICANN's own internal discussions like when the ICANN
> chair commissioned this report
> <https://archive.icann.org/en/psc/corell-24aug06.html>on the jurisdiction
> issue).
>
> If we can accept that this is a key jurisdiction (even if not "THE")
> question, but are not able to agree on a proposed solution, let us just
> write that in our report. But let us not contribute to alt-truth, a very
> dangerous phenomenon that is often spoke of nowadays. Both as a group, and
> individually as responsible persons - given an important global political
> responsibility -- we owe at least that much to ourselves.
>
> As for myself, and the groups that I work with, we will stand resolutely
> till the end in the path of any such synthesis of artificial reality - when
> a global group tasked to address the decades old democratic question of
> unilateral jurisdiction of one country over the global governance body,
> ICANN, comes up with a report that asserts that this is not a jurisdiction
> issue at all, or at least not an important one.
>
> parminder
>
>
>
>
>
>
>
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>

-- 
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn
<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> -
@rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
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