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

Fri Aug 18 06:14:16 UTC 2017

Dear Raphael,

Allow me to respond to the 2 questions in two separate emails.

First

>
> 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."/

/and its associated point/
>
> 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.

First, my issues are not with US private law - like the US corporation
law - that you mention but with US public law, the whole range of the
legal powers of the US state - its courts, its legislature, its
executive, and its many regulatory bodies. I simply cant understand why
you and some others here refuse to admit that every state, in this case
the US, has powers overs thousands of aspects of every private body and
every person's life within the territorial boundaries of that state. The
submissions that I pointed ( i hope you did see them, reposting them at
the end of this email*) to give some illustrative examples of such
powers and their likely use with a body like ICANN, but there are
thousands others. Now, if you simply refuse to accept this obvious and
clear-as-daylight fact of our contemporary political organisation I dont
know what can I do about it. But, excuse me to say, this may begin to
tilt dangerously towards some kind of alt-truth -- a complete denial of
well known truth, and created another in its place, here, the fantasy
that somehow the US state does not have thousands of kinds of powers
over ICANN as a US based private body.

To argue it another way, if such territorial powers were not there with
the state where an organisation is physically based there would have
been no concept of immunity for international bodies, something you
would accept does exist in this world that you and I inhabit . To
further extend this rather needless argument, if indeed the US state has
no such powers over ICANN, why not just indulge the stupid paranoid
kinds like me and we all agree to seek immunity under the US
International Organisations Immunity Act, which as per what you seem to
be arguing will be immunity from nothing, bec there is nothing to get
immunity from, which should therefore be not a problem for anyone.

parminder

*https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf
and
https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf

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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170818/31042435/attachment.html>