[Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
parminder
parminder at itforchange.net
Sat Aug 19 06:21:48 UTC 2017
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws
wrt ICANN as US incorporated entity is not at all comparable to that of
other countries' jurisdiction. It is a simple and obvious fact (though I
know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws
is a much higher order problem that to obtain it from other countries.
Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement
whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
>
>
>
> On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
>>
>> Dear Parminder
>>
>>
>>
>> Can you please provide a list? That is, can you specify which US
>> laws you wish immunity from under your tailored approach? And, can
>> you also advise, will you also argue (I assume the answer is yes)
>> that ICANN should seek immunity from the public law of other countries?
>>
>
> Yes, ICANN very well should seek such immunity from all countries. As
> immunity from US law can only be provided by US gov, immunities from
> public law of all other countries will require consent of all other
> govs. The normal way is to obtain such immunity at one time under an
> international agreement singed at the same time but all countries,
> rather than go to about 200 countries one by one. I am very much for
> such an international agreement providing such international status
> and corresponding immunity to ICANN. If US were to agree I am sure all
> outer countries would quickly agree to such an agreement..
> parminder
>
>>
>>
>> Paul
>>
>>
>>
>> Paul Rosenzweig
>>
>> paul.rosenzweig at redbranchconsulting.com
>> <mailto:paul.rosenzweig at redbranchconsulting.com>
>>
>> O: +1 (202) 547-0660
>>
>> M: +1 (202) 329-9650
>>
>> VOIP: +1 (202) 738-1739
>>
>> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>>
>> My PGP Key:
>> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
>>
>>
>>
>> *From:*ws2-jurisdiction-bounces at icann.org
>> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *parminder
>> *Sent:* Friday, August 18, 2017 2:20 AM
>> *To:* Raphaël BEAUREGARD-LACROIX
>> <raphael.beauregardlacroix at sciencespo.fr>
>> *Cc:* ws2-jurisdiction at icann.org
>> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of
>> one country over ICANN
>>
>>
>>
>> Now for the secons point raised by you.
>>
>>
>>
>> On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
>>
>>
>>
>>
>>
>> 2. How would being subject to the California Corporations Code
>> articulate itself with being immune? In fact this point is
>> related to the first one. The CCC serves as a basic framework of
>> corporate governance, something which is absent from most if not
>> all international organisations. It imposes duties on ICANN and
>> its constituents (board, etc.) and gives to some persons to sue
>> ICANN over these. A blanket immunity would negate this.
>>
>>
>>
>>
>>
>> I have said this repeatedly, that I do not seek full but tailored
>> immunity alone, which allows the operation of california corporations
>> code over ICANN, and also any other such law that is required for
>> ICANN to work in terms of its organisational or technical processes.
>> I quote from the 'solution" part of my email to which you respond
>>
>> "This immunity should be tailored/customised in a manner that
>> ICANN still remains subject to non profit law of the state of
>> California under which it is registered, and its organisational
>> processes function, and other such US laws and institutions that
>> are strictly required for ICANN to be able to satisfactorily
>> carry out its organisational, policy and technical functions (an
>> assessment with respect to which should be undertaken asap)."
>>
>>
>> Does this not already answer your point? And I also did give a link
>> to anICANN commissioned report
>> <https://archive.icann.org/en/psc/corell-24aug06.html>which provides
>> examples of US based NPOs still subject to corresponding state's
>> corporation law but provided partial immunity under the mentioned US
>> act.
>>
>> parminder
>>
>>
>>
>>
>>
>> 2017-08-16 10:36 GMT+02:00 parminder <parminder at itforchange.net
>> <mailto:parminder at itforchange.net>>:
>>
>> Issue:
>>
>> Various branches and agencies of the United States of America
>> - from judicial and legislative to executive, including its
>> many regulatory agencies - have exclusive (like no other
>> country's) direct legal remit and power over ICANN, as a US
>> non-profit organisation, with respect to practically every
>> aspect that can conceivably be affected by state power (their
>> range is so enormous that it is vain to begin listing them).
>> These agencies/ y can and do exercise them at any time in
>> pursuance of US law and policies, that have the primary
>> purpose to uphold US public interest and US constitution.
>> Many examples of such powers and their possible use have been
>> given invarious public submissions
>> <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire>
>> to this group, including this one
>> <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>
>> , and also this
>> <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf>.
>> Since ICANN is supposed to make policies and implement them
>> with regard to the global DNS in the global public interest
>> and not just US public interest, such unilateral availability
>> and use of legal state power with one country, the US, over
>> ICANN is untenable, and goes against basic principles of
>> democracy including of "no legislation/ policy without
>> representation". These principles are recognised by UN
>> instruments as human rights, and most countries today
>> including the US are built over them.
>>
>> Proposed solution:
>>
>> ICANN be granted immunity under the International
>> Organisations Immunities Act of the US. This immunity should
>> be tailored/customised in a manner that ICANN still remains
>> subject to non profit law of the state of California under
>> which it is registered, and its organisational processes
>> function, and other such US laws and institutions that are
>> strictly required for ICANN to be able to satisfactorily
>> carry out its organisational, policy and technical functions
>> (an assessment with respect to which should be undertaken asap).
>>
>>
>>
>> Additional notes:
>>
>> If I may add, this has been "THE" jurisdiction question since
>> the WSIS days if not earlier ( actually since the time ICANN
>> was formed). Whether or not we are able to agree to
>> recommending any solution to this jurisdiction question, it
>> will be an unacceptable travesty of facts and history if this
>> group does not accept this as an important, if not "THE",
>> jurisdiction question in relation to ICANN.
>>
>> Whether or not this group is able to contribute to global
>> public interest by making any positive progress on the
>> question of ICANN's jurisdiction, following the principles of
>> good governance and democracy, let it not regress and
>> actually serve to obfuscate what is seen and known as the
>> "ICANN's jurisdiction" question by everyone, by the global
>> public at large. (For instance, in ICANN's own internal
>> discussions like when the ICANN chair commissioned this
>> report
>> <https://archive.icann.org/en/psc/corell-24aug06.html>on the
>> jurisdiction issue).
>>
>> If we can accept that this is a key jurisdiction (even if not
>> "THE") question, but are not able to agree on a proposed
>> solution, let us just write that in our report. But let us
>> not contribute to alt-truth, a very dangerous phenomenon that
>> is often spoke of nowadays. Both as a group, and individually
>> as responsible persons - given an important global political
>> responsibility -- we owe at least that much to ourselves.
>>
>> As for myself, and the groups that I work with, we will stand
>> resolutely till the end in the path of any such synthesis of
>> artificial reality - when a global group tasked to address
>> the decades old democratic question of unilateral
>> jurisdiction of one country over the global governance body,
>> ICANN, comes up with a report that asserts that this is not a
>> jurisdiction issue at all, or at least not an important one.
>>
>> parminder
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
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>>
>>
>>
>>
>> --
>>
>> Raphaël Beauregard-Lacroix
>>
>> Sciences Po Law School 2014-2017
>>
>> LinkedIn
>> <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/>
>> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
>>
>>
>>
>>
>>
>>
>>
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