[CCWG-ACCT] Jurisdiction Proposed Questions and Poll Results
parminder
parminder at itforchange.net
Thu Dec 22 12:06:35 UTC 2016
On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
>
> “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.”
>
>
>
> Rather, it is an acknowledgement of reality.
>
Apologies for appearing to be flippant, but isnt that what every status
quo-ist says.
>
> Rule of law is neither globally strong nor evenly distributed. I can
> imagine a world in which the way forward you describe is plausible
> but, regrettably, it is not the one we live in. Other systems need
> strengthening and in some cases even existence before the way forward
> is open. It’s not a vote for the status quo but a recognition of path
> dependency.
>
I am not asking for a violent deviation from the path - both options
that I propose, a new international law and immunity under existing US
Act carries forward the path-dependency, and completely safeguard the
existing structures and processes of ICANN, the system I think you
allude to as requiring strengthening. What I propose in fact further
strengthens it, to a considerable extent. The ICANN system's current
jurisdictional oversight by a single country is its biggest weak point
in terms of international legitimacy. ( A point, unfortunately USians
here seem not able to see and sympathise with.) Imagine an ICANN with
immunity from US jurisdiction; how much legitimacy, and thus strength,
it adds to the system.
>
>
> Thanks for the back rounder Parminder. It was, along with some
> parallel research, quite helpful.
>
Thanks John, you are welcome.
> The problem remains however that there is no analogous organization to
> ICANN merely in terms of its contractual authority.
>
Firstly, if we are hoping that a fully-developed, well-rounded solution,
with everything fully covered by enough exact precedents, to this
complex but very genuine problem, will simply one day drop in our laps,
I assure you that this is not going to happen. We have to work for it,
join the dots, take risks, make innovations, and so on. The point is,
who is losing and gaining what from the present dispensation, and who is
willing to do what is required to do.
Next, I see that organisations like International Fertilizer and
Development Centre, which we cited as an example of an NPO given
jurisdictional immunity, also does run many projects worldwide. Any such
project would require use of a legal status, entering contracts, and so
on.... We just need to look into it. But if we close our eyes, and
simply refuse to explore options, we are not going to get anywhere. I am
not saying this example will be an exact fit for our requirement, but we
need to see what is possible, and innovate and evolve over it.
> I’d also add that many of the benefits of the act are at the
> discretion of the US Secretary of State and can be revoked.
>
Yes, which is why immunity under US Act is less sustainable option than
international law based immunity. But still better than the present
condition. In therecent civil society statement on jurisdiction
<http://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>,
we also suggested a method whereby any such withdrawal of immunity can
be made difficult/ ineffectual (see option 3 in the end).
> The proposed jurisdictional immunity would also require all
> governments to sign off on such status, given ICANN’s reach.
>
I dont see why so. Only US gov needs to agree.
>
>
>
> I know that there is a significant literature on international
> compacts and law. Given the often decades long time frames for the
> passage and acceptance of such law, the Internet as we know it is
> unlikely to exist by the time it comes into force.
>
These are weak excuses. It can be done in 6 months. But in any case, if
it satisfies those who want to move towards international jurisdiction,
what do you lose in allowing to set in motion the process, esp if you
think it would take forever to do anything. Let those who want have it.
In the interim, status quo would stay.
>
>
> To your question about why we do not discuss jurisdictional immunity
> under US law: it is because the domestic political reality of the
> situation makes such an eventuality so remote as to be hypothetical.
>
The same domestic situation makes the continuation of ICANN under US
jurisdiction even less tenable.
This brings me to a very important point: the job of CCWG, working on
behalf of the global community, is not to second guess what US gov will
accept or not (unfortunately, that is what it has mostly done). If this
was its real task, we as well may let US gov do what it may, instead of
providing them the cover of legitimacy of the supposed will of the so
called 'global community' which is what this process does. Our job is to
recommend what we think in is best global interest, and is ordinarily
plausible to do. This is what our job is, and we must just do that. Let
US gov do its job - accept our recs or not. That burden is upon them -
let s not take up their burden. This aspect of the work of the
"community" groups involved in the transition process has always greatly
bothered me. We must have clarity about - on whose behalf are we working
(i think, for the global community, but you can clarify) and what our
recs must be based on (I think, on our understanding of what is best for
the global community, and not what we think US gov likes and would agree
to, and what not, but again you can clarify)
>
>
> The described quest is admirable but IMO is a non-starter. Conditions
> do not exist presently to make it a possible.
>
We are part of once in decades constitutional process about ICANN's
structures. If it is not now, it is never.
parminder
>
>
>
> Best regards,
>
>
>
> John Laprise, Ph.D.
>
> Consulting Scholar
>
>
>
> http://www.linkedin.com/in/jplaprise/
>
>
>
>
>
>
>
> *From:*parminder [mailto:parminder at itforchange.net]
> *Sent:* Tuesday, December 20, 2016 2:57 AM
> *To:* John Laprise <jlaprise at gmail.com>;
> accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
> Results
>
>
>
> 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/
>
>
>
>
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> <mailto: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
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Jurisdiction Proposed Questions and
> Poll Results
>
>
>
>
>
>
>
> 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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