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

Wed Aug 23 08:09:22 UTC 2017

Erich

I must correct a serious misconception here.   The State does not simply 
"get to decide who runs its ccTLD". That is a simplistic and inaccurate 
view. (The State is however, a very important participant).

Historically, Jon Postel decided.  And the delegation was made under 
international private law (the same system of law that ICANN operates 
under).

The State was not involved, either legally, or, at that time, was even 
interested, unless it was one of the small number of countries that 
applied to Jon Postel for the two letter code that matched the ISO-3166 
list.

In 1994, Jon Postel and several others codified existing policy (such as 
previous RFCs), and current considerations into the policy document that 
is now the basis of all ccTLD delegations.

It is accepted as such by (most) ccTLDs including most ccTLDs that 
existed prior to 1994.

In that document (RFC 1594), which has been extensively analysed and 
construed by a WG of the ccNSO including ICANN staff and GAC 
representatives, the views of "significantly interested parties" are 
important in delegation decisions.

And since the sovereign is quite obviously a Significant Interested 
Party, this is explicitly noted in the FoI.

Other SIPs would have to show why they are are significantly interested 
in delegation decisions; for the State, it's automatic that they are a SIP.

Inded,there may be more than one governmental SIP in some countries' and 
territories' situations.

IANA now fully follows RFC1594 and its agreed interpretation.

For more information about the FoI, which the ICANN Board have formally 
adopted, please see

https://ccnso.icann.org/workinggroups/charter-foiwg-07jun11-en.pdf

To read the FoI itself, see 
https://ccnso.icann.org/workinggroups/foi-final-07oct14-en.pdf

I would note that any proposal that ICANN act in a way that does not 
comply with RFC 1994 or the construction (which as said, was arrived at 
with the participation of different parties, including GAC) would 
probably cause signficant consitituional issues for ICANN in an area 
that is now settled.

It could be seen as one part of ICANN seeking to override the 
subsidiarity principle and encroach on the specific constitution of 
another part.

On 23/08/17 07:22, Schweighofer Erich wrote:
> Very right, Milton.
>
> From the site of internet users (the remit of ALAC), our goal should
> non-inference of international entities in ICANN’s core activities.
> Decisions of ICANN should be stable – after an efficient redress
> procedure – and not be challenged by States and Supranational
> Organisations anymore and also – considering ongoing thoughts in
> international humanitarian law – not subject to sanction regimes.
>
> Each state can decide who runs its ccTLD, respecting rights to property,
> but too much insistence on sovereignty means also that it may be subject
> to sanctions.
>
> As I mentioned before, immunity in international law is slowly going to
> be reduced to necessity (a very difficult process); thus pragmatic work
> on non-interference (e.g. some partial immunity) should be the goal. A
> general OFAC licence may be the first (and not the last) example. Other
> important work has to be done in courts that they accept ICANN’s special
> status.
>
> Best, Erich
>
>
>
>
>
>
>
> *Von: *Mueller, Milton L <mailto:milton at gatech.edu>
> *Gesendet: *Montag, 21. August 2017 15:02
> *An: *Nigel Roberts <mailto:nigel at channelisles.net>;
> ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Betreff: *Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral
> jurisdiction of one country over ICANN
>
>
>
> We formulate it as a collateral damage argument. The DNS root is an
> essential facility to the functioning of the global Internet, and it is
> better for people in a sanctioned country (most of whom are innocent
> parties) to have Internet access. Taking away Internet access harms the
> general public more than it harms the sanction targets.
>
>> -----Original Message-----
>> From: ws2-jurisdiction-bounces at icann.org [mailto:ws2-jurisdiction-
>> bounces at icann.org] On Behalf Of Nigel Roberts
>> Sent: Monday, August 21, 2017 8:29 AM
>> To: ws2-jurisdiction at icann.org
>> Subject: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of
>> one country over ICANN
>>
>> It was a genuine comment.
>>
>> If you are making an application for a General Licence you will have to
>> formulate it quite differently than "we don't like the USA foreign policy" since
>> it is the USA that will accept or decline the application.
>>
>>
>>
>>
>> On 21/08/17 12:52, parminder wrote:
>> >
>> > On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
>> >> I'm sure that formulation will go down well on the OFAC General
>> >> License application form, and with Ted Cruz .  . .
>> >
>> > Nigel, I will respectfully urge you to give up your cryptic one
>> > liners, most of which we from the non english non-western world are
>> > unable to understand. Neither does the sarcasm contained therein
>> > contribute to what is a very serious exercise of global responsibility
>> > that we are trying to undertake here. Please be very clear and
>> > explicit in whatever you want to say, and try simple and plain
>> > english, with fewer idioms and situated facts rooted in western culture.....
>> >
>> > As for what I understand from your above remark, if your suggestion is
>> > that we, of the non US world, play nice and deferential to every quirk
>> > and detail of the US nation and state, let me make it very clear that
>> > I have no such intention. I much respect the US nation and state, but
>> > then so do I respect every other country, and the democratic rights of
>> > their citizens.
>> >
>> > parminder
>> >>
>> >>
>> >>
>> >> On 21/08/17 12:08, parminder wrote:
>> >>>
>> >>> On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
>> >>>> And what will ICANN then be immune from?
>> >>>
>> >>> Milton put it nicely, to quote, "...from the vagaries of U.S.
>> >>> foreign policy or other laws and policies that would circumvent
>> >>> ICANN's accountability to its global MS community."
>> >>>>
>> >>>>
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>> >>>
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