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

[Greg Shatan]

I agree with Milton.

In the interests of discourse, however, I would ask Drs. Schweighofer and
Jabbour: What "international law" are you referring to?

It's clearly not the law among states, as Milton notes.  It's also not
international private law, which, as Nigel notes, is primarily contractual
in nature.  Perhaps a more detailed explanation would help resuscitate the
point.  Quite a number of people have used the term "international law" in
discussions about ICANN policy and policy-making, but I've yet to see any
cogent explanation of what body or sector of law and law-making they are
referring to.  Maybe we have a failure of communication, rather than a
failure of concept.

I might also ask, what "international law community" is being referred to?
Academics? Practicing lawyers? Government and/or IGO representatives?  All
of the above?  As John Curran notes, members of that community are more
than welcome to participate in this community's processes (and I assume
that these emails may be a sign, however tentative, of that engagement).  A
generic determination of the "Global Public Interest" (if such a thing is
even possible) by an "international law community" would only be of
interest as a high level input to our processes.  As I noted before, any
determination of the Global Public Interest must begin with a discussion of
context, i.e., "the Global Public Interest in what?"

Greg



On Sun, Jul 10, 2016 at 9:21 PM, Mueller, Milton L <milton at gatech.edu>
wrote:

> 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
> To: milton at gatech.edu; gregshatanipc at gmail.com; AAikman at lrrc.com
> Date: Sat, 9 Jul 2016 08:50:04 +0000
> CC: thomas at rickert.net; 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
> <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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