[CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

[Mueller, Milton L]

Dr. Jabbour and Schweighofer:
International law is law among states. ICANN is not a state and, unlike an intergovernmental organization, its participants are not states, but primarily private sector stakeholders. Those stakeholders make policy themselves, via a bottom up process. Insofar as ICANN makes "law" it is global and applies only to the global DNS, it is not "international."

Thus the concept of "international law" as applied to any determination of GPI made within ICANN is quite irrelevant -  except perhaps when ICANN does something that abrogates existing international law, which its bylaws tell it not to do.

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology




From: Dr. Mona Al-achkar JAbbour [mailto:maj_aj at hotmail.com]
Sent: Sunday, July 10, 2016 7:41 AM
To: Schweighofer Erich <erich.schweighofer at univie.ac.at>; Mueller, Milton L <milton at gatech.edu>; Greg Shatan <gregshatanipc at gmail.com>; Aikman-Scalese, Anne <aaikman at lrrc.com>
Cc: Thomas Rickert <thomas at rickert.net>; Accountability Cross Community <accountability-cross-community at icann.org>
Subject: RE: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)

I totally agree with Erich
Actually, the "Global Interest" cannot be defined and agreed on, outside the international Law
Best
Mona
________________________________
From: erich.schweighofer at univie.ac.at<mailto:erich.schweighofer at univie.ac.at>
To: milton at gatech.edu<mailto:milton at gatech.edu>; gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>; AAikman at lrrc.com<mailto:AAikman at lrrc.com>
Date: Sat, 9 Jul 2016 08:50:04 +0000
CC: thomas at rickert.net<mailto:thomas at rickert.net>; accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)
ICANN cannot determine the Global Public Interest alone, that is the work of the international law community world-wide, taking into account present methodology for developing customary international law. I am working on a study on that because I find this concept strong enough to act as a mediator between so different interests of international community in its now different forms - states, civil society,  business etc. but also takes into account present major stakeholders like state or inter-governmental international organisations. In my humble opinion, it is the phrase for respect of international law for new international actors on the global plane like ICANN. Besides the regulatory concept of this term, the other elements of adjudication and enforcement should be not forgotten.
Best,
Erich Schweighofer

Von: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] Im Auftrag von Mueller, Milton L
Gesendet: Samstag, 09. Juli 2016 05:15
An: Greg Shatan; Aikman-Scalese, Anne
Cc: Thomas Rickert; Accountability Cross Community
Betreff: Re: [CCWG-ACCT] CCWG-Accountability - Draft Comment for Public Consultation on Articles of Incorporation (AOC)



There is no requirement in the revised Bylaws that the Global Public Interest be determined, or that such a determination is needed (or even desirable) for ICANN (the Board, the Corporation and/or the Community) to make decisions..

There is a requirement that if the Global Public Interest is determined, it will be done by the multistakeholder community through an inclusive bottom-up multistakeholder community process.

MM: Agreed.

a determination of the "public interest."  ICANN is no exception.  The "Global Public Interest" standard has been in ICANN's Bylaws since the beginning; this is nothing new

MM: No, it hasn't. Check if you wish: https://www.icann.org/resources/unthemed-pages/bylaws-1998-11-23-en
ICANN was incorporated as a California "public benefit corporation" (i.e., a nonprofit) but the "global public interest" standard is quite new and those of us with knowledge of history of utility regulation in the U.S. understand where a public interest standard comes from and what are its implications (basically, blanket grant of authority to determine what is good for us). Most of us don't want ICANN to have that power. Some people still can't cough out an acknowledgment that ICANN is a regulator.

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology




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