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

Mon Aug 21 17:25:00 UTC 2017

I think this is an incomplete statement.  US enforcement agencies should not
“interfere with the activities ICANN performs in the global public interests
as a means of advancing US foreign policy.”   Enforcement agencies acting in
the normal course (e.g. taxation, customs, health and safety, environment,
and criminal law) will “interfere” ICANN – in much the same way that
Brazilian civil authorities will.  The end goal here (as Milton and
parminder said) should be to avoid US use of ICANN as a tool of US power –
it is not to make ICANN immune from civil law generally.

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

My PGP Key:
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
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 Thiago Braz Jardim
Oliveira
Sent: Monday, August 21, 2017 9:51 AM
To: Mueller, Milton L <milton at gatech.edu>; parminder
<parminder at itforchange.net>; ws2-jurisdiction at icann.org
Subject: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral
jurisdiction of one country over ICANN

Just to clarify, the impact of OFAC sanctions on the operations of ICANN
must be averted, and if that can be achieved in any way through a general
license, so be it. But in addition to that, we should also try and recommend
other measures that ensure US enforcement agencies cannot, in spite of OFAC
and any general licensing, interfere with the activities ICANN performs in
the global public interest.

  _____  

De: Thiago Braz Jardim Oliveira
Enviado: segunda-feira, 21 de agosto de 2017 9:24
Para: Mueller, Milton L; parminder; ws2-jurisdiction at icann.org
<mailto:ws2-jurisdiction at icann.org> 
Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral
jurisdiction of one country over ICANN

Dear Milton,

Dear All,

Thank you for your comment. Further to Parminder's response, I will try and
respond myself to the points you raised, which I hope will make it clear
that I am not advocating that ICANN change its status as a Californian
non-profit public benefit corporation.

There is no obstacle preventing private organisations formed under the laws
of one country, as is ICANN, to benefit from jurisdictional immunities. If
immunity is granted - immunity with respect to the functions it performs in
the global public interest -, ICANN would still be an organisation
incorporated under the laws of California, subject to California laws and
accountability mechanisms in every aspect of its daily life that do not
interfere with the performance of its global public functions.

The above sort of arrangement would need no precedent in the world for us to
conceive it. We could innovate. But there are precedents and they can be
looked at for inspiration. For example, the ICRC (International Committee of
the Red Cross) is a private association formed under the Swiss Civil Code,
it draws its legal existence from the Swiss domestic order, it is subject to
the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it
enjoys immunity from the local laws in many respects (the basis is an
agreement with Switzerland and Swiss laws themselves). Notice, further, that
where it enjoys jurisdictional immunity, it is immunity from adjudication
and enforcement, for it can be waived at any time. It is not immunity from
liability, which ordinarily shall be carried out by mechanisms outside the
domestic legal framework. (In the US, there would be at least one similar
example, as is the case of the International Fertilizer and Development
Center, further showing that the immunity arrangement we propose is indeed
possible).

Finally, I think we all agree that what we need for ICANN is "insulation
from the vagaries of U.S. foreign policy or other laws and policies that
would circumvent ICANN’s accountability to its global MS community."
Precisely this insulation cannot be achieved through just the commitment by
US enforcement agencies that, say, OFAC will compulsorily grant any license
ICANN requests. For new and unforeseen laws and policies that interfere with
ICANN's global functions can at any time be enacted by the territorial
State, and their application to ICANN will not be barred unless ICANN enjoys
immunity in respect to the set of activities we advocate it should enjoy,
namely policy development and policy implementation activities performed in
the global public interest. (I am sure you have heard of the "Cuban Liberty
and Democratic Solidarity [Libertad] Act of 1996", also known as
Helms–Burton Act, which created new restrictions for US-based companies to
deal with Cuba and with whoever dealt with Cuba). So it is the protection of
jurisdictional immunities a necessary step to meet ICANN's accountability
goals, as defined in the Charter of WS2, coupled with the provision of
compulsory dispute settlement mechanisms that are independent from any
national jurisdiction and representative of the diversity of the Internet
community.

Best,

Thiago

  _____  

De: ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org>
[ws2-jurisdiction-bounces at icann.org] em nome de parminder
[parminder at itforchange.net]
Enviado: segunda-feira, 21 de agosto de 2017 7:45
Para: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral
jurisdiction of one country over ICANN

On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote:

Thiago

I am not sure why you are still talking about “immunity” when ICANN’s
accountability arrangements are rooted in California nonprofit public
benefit corporation law. Forgive me if  I am misunderstanding you, but no
one wants ICANN to be immune from its fundamental bylaws, and those bylaws
are based in California jurisdiction. What we need is not some kind of
blanket immunity from all aspects of U.S. jurisdiction, but insulation from
the vagaries of U.S. foreign policy or other laws and policies that would
circumvent ICANN’s accountability to its global MS community. 

We have had considerable discussion here on that what is being sought for
ICANN is immunity in a manner that does not affect its working under the
california NP law, so, there is no proposal on the table to make "ICANN to
be immune from its fundamental bylaws". In fact we are just seeking such
immunity as would provide, as you put it, "insulation from the vagaries of
US foreign policy or other laws and policies that would circumvent ICANN's
accountability to its global MS community".

Now that we agree on the objectives of what we want, it should be easy to go
ahead.

It is my contention that immunity under US International Organisations
Immunities Act can be obtained in a manner that still keeps ICANN subject to
California NP law, and thus able to undertake its internal governance
processes in an unchanged way. If this can be done, would it satisfy you?
>From what you say above it should. 

Such customised immunity for ICANN will meet both the objectives that we
agreed on above. 

parminder

--MM

From: ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org>
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim
Oliveira
Sent: Sunday, August 20, 2017 10:17 PM
To: Paul Rosenzweig  <mailto:paul.rosenzweig at redbranchconsulting.com>
<paul.rosenzweig at redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX'
<mailto:raphael.beauregardlacroix at sciencespo.fr>
<raphael.beauregardlacroix at sciencespo.fr>
Cc: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction
of one country over ICANN

Dear Paul,

If you check the Charter of Work Stream 2 (here's the link:
https://community.icann.org/display/WEIA/Charter), you'll see that the
NETmundial multistakeholder statement is expressly relied on precisely to
define "accountability" in the terms I explained. So, yes, the NETmundial is
a statement of ICANN's accountability goals.

As to the activities that should be exempted from national jurisdictions in
order to meet these accountability goals, they are the policy development
and policy implementation activities of ICANN that are performed in the
global public interest.

For reasons that I explained earlier, the decisive and necessary step in
this direction should be immunity in their respect from the jurisdiction of
the country of incorporation, which is the one with jurisdiction to enforce
national rules (as distinguished from jurisdiction to prescribe). (It is no
coincidence that "status of force agreements" or "headquarters agreements"
or "accords de siège" - or even national laws as in the many examples given
in the study on immunity commissioned to assist ICANN here:
http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity
to organisations from the jurisdiction of the host country, not just any
country)

Admittedly, any country in the world should refrain from ascertaining
jurisdiction over ICANN's policy-related activities. But notice that the
core of these activities (which are the ones for which there should be
immunity) are subject to the territorial jurisdiction of the US, and other
countries have no authority to enforce their prescriptions in their respect.
That notwithstanding, as someone already said, if the necessary immunity is
set to be obtained from the country of incorporation, other countries will
have no problem in signing in the document where they all agree to limit
their already virtually nonexistent powers to impact ICANN's global
operations. We should recommend the first and decisive step, and all the
other steps, including the establishment of a compulsory and independent
dispute settlement mechanism with jurisdiction to judge ICANN for the
activities exempted from national jurisdictions. Nothing short of that would
meet ICANN's accountability goals as per the Charter of WS2.

Best,

Thiago

  _____  

De: Paul Rosenzweig [paul.rosenzweig at redbranchconsulting.com
<mailto:paul.rosenzweig at redbranchconsulting.com> ]
Enviado: sábado, 19 de agosto de 2017 12:06
Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX'
Cc: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of
one country over ICANN

Leaving aside that the netMundial statement is not an ICANN statement (and
therefore not a statement of ICANN’s accountability goals)  
 which
activities?  You say “certain of its activities” – which?  And immune from
which law?

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

My PGP Key:
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

From: ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org>
[mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim
Oliveira
Sent: Saturday, August 19, 2017 10:22 AM
To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix at sciencespo.fr
<mailto:raphael.beauregardlacroix at sciencespo.fr> >
Cc: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one
country over ICANN

Dear Raphael, 

Is my "stance of one seeking complete immunity"? No, that's not what I said.

Would ICANN's immunity from US jurisdiction in respect of certain of its
activities, which are performed in the global public interest, make it less
accountable? No, it would not. Instead, it would increase ICANN's
accountability as defined in the NETmundial multistakeholder statement, that
is accountability towards all stakeholders. Currently, ICANN's
accountability mechanisms do not meet all stakeholders expectations, for
ICANN is more accountable to one certain country and its citizens than to
others.

Can ICANN's accountability rank higher than treaty organisations in the
scenario ICANN is granted jurisdictional immunities? Yes, suffice it to
establish an independent and compulsory dispute settlement mechanism for the
activities and disputes that are then exempted from national jurisdictions.

Best,

Thiago

  _____  

De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix at sciencespo.fr
<mailto:raphael.beauregardlacroix at sciencespo.fr> ]
Enviado: sábado, 19 de agosto de 2017 9:46
Para: Thiago Braz Jardim Oliveira
Cc: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one
country over ICANN

Parminder: you seem to be wanting immunity from "US public law," but unless
you can define that more precisely than "all the laws that affect ICANN
except the CCC" I would not be inclined to see that in as a recommendation
in the final report. Yes, I have read all the materials that you have
submitted, and yes there are many NGOs that have obtained (some form of)
immunity under the said US act, but unless we can know immunity from what,
that does not tell us much. And even if we did, we are still stuck with the
problem of defining what we would want ICANN to be immune from. (except if
we go with what I understand to be Thiago's stance) "Public law" is
extremely ambiguous and equivocal and is not a category we can rely on. 

Thiago: is your stance one of seeking complete immunity? And besides, I am
not sure how granting ICANN immunity of any sort would foster more
participating in ICANN-related internet governance decision-making and
debate. And don't you think it would then make ICANN less accountable? If I
had to rank organisations in terms of accountability, to me ICANN ranks much
higher than any treaty organisation (UN or OECD for example) 

2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira
<thiago.jardim at itamaraty.gov.br <mailto:thiago.jardim at itamaraty.gov.br> >:

Dear All,

It is indeed difficult to deny that the authorities of a country where an
entity is based have a superior (and in many respects exclusive) claim to
jurisdiction over the activities of that entity. For example, the
territorial State is the one with exclusive enforcement jurisdiction, so
that only the local enforcement agencies have the necessary authority to
compel people in the country to comply with national laws and court rulings.
In the case of ICANN, if the argument is made that any country in the world
could pass legislation to compel ICANN to, say, shut down the DNS, the
enforcement of that legislation would still need go through action of US
enforcement agencies. In other words, US authorities would have to consent
to that (a veto power if you will) and they would have themselves to enforce
the required action (one could also think of the need for US courts to
recognise foreign judgments, in exequatur proceedings, for them to be
enforceable in the US, and the execution would have to be carried out
through US organs).

So let us not overlook this fact with the argument, which is simply not
true, that all countries are in a similar position as the country of
incorporation of ICANN to impact on ICANN's activities. Other countries do
not have as much jurisdiction as the United States to influence and
determine the course of many of ICANN's activities (in fact, the core of
ICANN's activities), and it is with a view to ensure that they all
participate on an equal footing on all Internet governance-related issues
that immunities from US jurisdiction must be sought (N.b. jurisdiction
includes prescriptive, adjudicative and enforcement jurisdiction).

Best,

Thiago

  _____  

De: ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org>
[ws2-jurisdiction-bounces at icann.org
<mailto:ws2-jurisdiction-bounces at icann.org> ] em nome de parminder
[parminder at itforchange.net <mailto:parminder at itforchange.net> ]
Enviado: sábado, 19 de agosto de 2017 3:21
Para: ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org> 
Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one
country over ICANN

Lest my response be mis-interpreted, I should clarify that:

The incidence of and accountability to US jurisdiction and public laws wrt
ICANN as US incorporated entity is not at all comparable to that of other
countries' jurisdiction. It is a simple and obvious fact (though I know
often contested here). 

In the circumstances, getting immunity from US jurisdiction/ public laws is
a much higher order problem that to obtain it from other countries. Right
now that is the key problem confronting us.

Having said this, I stand by the proposal for an international agreement
whereby all countries extend such immunity to it in one go...

parminder 

On Saturday 19 August 2017 09:56 AM, parminder wrote:

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?  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?  

Yes, ICANN very well should seek such immunity from all countries. As
immunity from US law can only be provided by US gov, immunities from public
law of all other countries will require consent of all other govs. The
normal way is to obtain such immunity at one time under an international
agreement singed at the same time but all countries, rather than go to about
200 countries one by one. I am very much for such an international agreement
providing such international status and corresponding immunity to ICANN. If
US were to agree I am sure all outer countries would quickly agree to such
an agreement..
parminder

Paul

Paul Rosenzweig

 <mailto:paul.rosenzweig at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com

My PGP Key:
<https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684

From: ws2-jurisdiction-bounces at icann.org
<mailto: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
<mailto:raphael.beauregardlacroix at sciencespo.fr>
<raphael.beauregardlacroix at sciencespo.fr>
Cc: ws2-jurisdiction at icann.org <mailto: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 an
ICANN 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 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.p
df> . 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

-- 

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

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org> 
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org> 
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

_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction at icann.org <mailto:Ws2-jurisdiction at icann.org> 
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-jurisdiction/attachments/20170821/e57adbca/attachment-0001.html>