[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results

Tue Dec 20 08:57:02 UTC 2016

On Monday 19 December 2016 08:14 PM, John Laprise wrote:
>
> Possibilities of jurisdictional immunity? Could you please provide
> examples of organizations that enjoy such.
>

John
The most well known case of jurisdictional immunity is of course for
organisations incorporated under international law. Unlike what has been
argued here variously, although international law has to be made by
governments through treaties etc that says nothing about the actual
governance structure of the concerned organisation, ICANN in this case.
International law can, to take an extreme case, hand over complete
governance of a body created/ incorporated under international law to
you and me... Nothing circumscribes how international law is written as
long as all countries agree to it. It is entirely possible, and I think
extremely plausible, that they would agree to write in such law the
exact governance structure of ICANN as it is at present. Right now too,
ICANN exists by and under the strength of its law of incorporation which
is US law. In the scenario I present, it would just be international law
instead of US law. Yes, there are matters to worked out in this regard,
but if democracy and self-determination of all people, equally, is of
any importance at all, we can go through the process, including doing
the needed innovations as needed. The current international system was
not handed over to us by God, it was evolved by people like us, who
responded appropriately to newer and newer global challenges, as the one
that faces us now. To turn ones face away and say, nothing can be done
here, to evolve our democratic international systems, is to vote for a
status quo which serves some, but not others. And these are the others
that are protesting here, and seeking appropriate change. It is a
political issue, lets not treat it as a technical issue, of what is
argued to be difficult or too "troublesome" to pursue.

Next, even without going the international law route, as has been said
many times earlier here, US law allows even non profits to be given
jurisdictional immunity. The concerned law is the _United States
International Organisations Immunities Act
<https://archive.icann.org/en/psc/annex9.pdf>_ . And an example of a US
non-profit being given jurisdiction immunity under it is/International
Fertilizer and Development Center. /This has been discussed in a report
commissioned by ICANN itself which can be found at
https://archive.icann.org/en/psc/corell-24aug06.html .

I have been unable to understand why can we not agree to even
jurisdictional immunity under existing US law, which keeps ICANN in the
US, preserves its existing structures, and does go considerable way to
address the concerns about those who are concerned about application of
US public law on ICANN, and what it may mean for its global governance
work.

The argument is advanced that this may affect the operation of the newly
instituted community accountability mechanism. I dont think this is not
true. This mechanism is a matter of internal ICANN governance system,
which is a 'private' arrangement with choice of law available to it. It
simply has to be put in ICANN bylaws that ICANN governance processes
will be subject to adjudication by Californian courts as present. That
should do. Of course the mentioned International Fertilizer and
Development Centre also must be existing with some governance systems,
that admit of external adjudication, even as it enjoys the benefit of
jurisdictional immunity from US public laws. Such immunity always only
pertains to the policy and such international core activities of the
concerned organisation, and associated matters. It would not, for
instance, extend to actual crime being committed by its personnel on its
premises. All such matters of various distinctions get taken care of
when we enter the actual processes of such immunities etc. Right now,
the issue is only to decide to go down the route, or not.

parminder

>  
>
> Best regards,
>
>  
>
> John Laprise, Ph.D.
>
> Consulting Scholar
>
>  
>
> http://www.linkedin.com/in/jplaprise/
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>  
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>  
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>  
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *parminder
> *Sent:* Monday, December 19, 2016 7:10 AM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>  
>
>  
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> On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
>
>     SNIP 
>
>     John Laprise's wording was much, much better: 
>
>     "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"
>
>
> This formulation does not include possibilities of jurisdictional
> immunity.
>
> Something like
>
>
> "What are the advantages or disadvantages, if any, relating to changing ICANN’s jurisdiction*, */or providing possible jurisdictional immunity,/* particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?"
>
>
> would be better.
>
> parminder
>
>      
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