[Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
parminder
parminder at itforchange.net
Sat Aug 19 04:21:00 UTC 2017
Dear Paul
Thanks for your engagement. responses below.
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
>
> Dear Parminder
>
>
>
> Can you please provide a list? That is, can you specify which US laws
> you wish immunity from under your tailored approach?
>
In fact, I really cannot. And I am not being flippant, nor ignorant. I
am involved in top management of an Indian NGO, and if you ask me a list
of Indian laws that apply to the NGO I really wont be able to make a
list. Practically every law does, and new ones can be made any time. And
there are emergency/ extra-ordinary time/ contexts provisions, where new
obligations and checks could kick in. They are there in every country,
and I am sure also in the US. There must be executive emergency powers
in the US say to deal with wartime. BTW, President Obama almost signed
an emergency Internet infrastructure related bill, which was popularly
called as the kill switch bill, and now we have a US President that has
an official "America first" policy, so, who knows!
Anyway, I got distracted to talk about state powers in extra-ordinary
times, but there is a big enough problem in normal times. State
functions to order society as per some principles and laws supposed to
be representing popular will (in democracies). So, I really do not know
how to answer your question. All such laws in the US represent US public
will and not global will, and we -- the non US public -- have no desire
to be governed by US law (as at one time you USians rejected governance
by English law) and would like to have the global governance of DNS to
be immune from all US laws, other than those that we agree to submit to
for the sake of practical functioning of ICANN, it being located in the US.
There is a very huge literature on host country agreements for
international organisations addressing this precise question. I keep
referring to this document, but let me again do it. This report aptly
named "Educational Material to Assist ICANN in Deciding What Status The
Corporation <https://archive.icann.org/en/psc/corell-24aug06.html>Should
Aim for as A Private International Entity in Its Host Country
<https://archive.icann.org/en/psc/corell-24aug06.html>" was commissioned
by ICANN for precisely this issue, and I am not sure why an ICANN WG
dealing with jurisdiction issue refuses to refer to it or discuss it.
In this, the commissioned expert gives examples of a number of non
inter-gov organisations that have been granted immunity under US
International Organisations Immunity Act, like
Global Fund to Fight Aids, Tuberculosis and Malaria , /International
Fertilizer and Development Center (IFDC), International Food Policy
Research Institute (IFPRI), Inter-American Statistical Institute (
IASI), International Union for Conservation of Nature and Natural
Resources (ICUN)/
At least some of them I understand are NPOs under US law, and the fact
that they continue to be NPOs working under such law even with immunity
under the said US Act shows that immunities under the Act can be so
tailored. The referred ICANN commissioned report says that it presents
some material about the organisations cited as examples and that "the
ICANN team will be able to quickly find additional relevant material."
For some reason though, ICANN, and this group, has consistently refused
to do so. I have mentioned this report several times, and a few times
asked the WG chair to seek expert legal advice on the question of how a
US registered NPO can get immunity under the mentioned act while still
continuing to function under a US NPO legislation. But the Chair has
consistently refused to even acknowledge that request. A few times my
request was also supported by others. In the circumstances, it is not
possible for me to do all the legal work myself to substantiate my case.
This report of an ICANN WG contains detailed comments by an expert
<https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
on various forms of restricted, tailored etc immunities. I have shared
this report too a few times earlier.
I do not see any problem for ICANN to get immunity under the
International Organisations Immunities Act even while it remains subject
to california NPO or any other law strictly required to cally out its
organisational and technical functions. What such functions and relevant
laws are is something for ICANN legal and outside lawyers to tell us.
What is important here is that we cannot work on a positive list of what
laws we need exemption from, that never works, and I don think there is
either any dependent or process for that. We have to work on a negative
list, of such laws that we do not want exemption, like California non
profit law and any such other that may be required.
Hope I make myself clear, but happy to clarify.
I will respond to your second question on a separate email.
regards, parminder
> And, can you also advise, will you also argue (I assume the answer is
> yes) that ICANN should seek immunity from the public law of other
> countries?
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> My PGP Key:
> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
> *Sent:* Friday, August 18, 2017 2:20 AM
> *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix at sciencespo.fr>
> *Cc:* ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of
> one country over ICANN
>
>
>
> Now for the secons point raised by you.
>
>
>
> On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
>
>
>
>
>
> 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.
>
>
>
>
>
> I have said this repeatedly, that I do not seek full but tailored
> immunity alone, which allows the operation of california corporations
> code over ICANN, and also any other such law that is required for
> ICANN to work in terms of its organisational or technical processes. I
> quote from the 'solution" part of my email to which you respond
>
> "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)."
>
>
> Does this not already answer your point? And I also did give a link to
> anICANN commissioned report
> <https://archive.icann.org/en/psc/corell-24aug06.html>which provides
> examples of US based NPOs still subject to corresponding state's
> corporation law but provided partial immunity under the mentioned US act.
>
> parminder
>
>
>
>
>
> 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
>
>
>
>
>
>
>
>
>
>
>
>
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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/>
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