[Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
parminder
parminder at itforchange.net
Sat Aug 19 14:48:03 UTC 2017
On Saturday 19 August 2017 07:05 PM, Paul Rosenzweig wrote:
>
> Sorry Thiago, but as I’ve said before, I think this is wrong. EXCEPT
> for issues relating to corporate statues (which parminder has already
> said should not be addressed) every country where ICANN operates does
> have equal de jure right to exercise jurisdiction (consistent with its
> own national law) and express its own national interests. That’s why,
> for example, Brazil arrested a Google executive for failing to comply
> with Brazilian legal requirements
> (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-brazil-faces-arrest-over-video.html?mcubz=3).
> Personally, I think that was a mistake by the Brazilian government,
> but I cannot and would not deny its legal right to do as it did.
>
By arresting a google employee Brazilian gov may be able to make google
act as it wishes to (hopefully, legally) "within Brazil". It cant change
google's global policy. However, by arresting a google or icann
employee, both organisations being HQed in the US, the US government can
make google/ icann change their respective global policies. They can
change how ICANN's policies impact everyone not just those in the US. I
really have no problem with US gov, courts etc, being able to change
ICANN's behaviour within US, that is very fine.
This is obvious and well known, but if you seek examples, you have seen
gltd application book that says ICANN will work within US OFAC
sanctions. Havent heard of ICANN saying they'd work within say recent
Saudi sanctions on Qatar! Again, all this is well known and elementary.
I really do not understand why you have been insisting on this point all
the time....
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
>
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>
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>
>
>
> *From:*ws2-jurisdiction-bounces at icann.org
> [mailto:ws2-jurisdiction-bounces at icann.org] *On Behalf Of *Thiago Braz
> Jardim Oliveira
> *Sent:* Saturday, August 19, 2017 8:04 AM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of
> one country over ICANN
>
>
>
> Dear All,
>
>
>
> It is indeed difficult to deny that the authorities of a country where
> an entity is based have a superior (and in many respects exclusive)
> claim to jurisdiction over the activities of that entity. For example,
> the territorial State is the one with exclusive enforcement
> jurisdiction, so that only the local enforcement agencies have the
> necessary authority to compel people in the country to comply with
> national laws and court rulings. In the case of ICANN, if the argument
> is made that any country in the world could pass legislation to compel
> ICANN to, say, shut down the DNS, the enforcement of that legislation
> would still need go through action of US enforcement agencies. In
> other words, US authorities would have to consent to that (a veto
> power if you will) and they would have themselves to enforce the
> required action (one could also think of the need for US courts to
> recognise foreign judgments, in exequatur proceedings, for them to be
> enforceable in the US, and the execution would have to be carried out
> through US organs).
>
>
>
> So let us not overlook this fact with the argument, which is simply
> not true, that all countries are in a similar position as the country
> of incorporation of ICANN to impact on ICANN's activities. Other
> countries do not have as much jurisdiction as the United States to
> influence and determine the course of many of ICANN's activities (in
> fact, the core of ICANN's activities), and it is with a view to ensure
> that they all participate on an equal footing on all Internet
> governance-related issues that immunities from US jurisdiction must be
> sought (N.b. jurisdiction includes prescriptive, adjudicative and
> enforcement jurisdiction).
>
>
>
> Best,
>
>
>
> Thiago
>
>
>
>
>
>
>
> ------------------------------------------------------------------------
>
> *De:*ws2-jurisdiction-bounces at icann.org
> <mailto:ws2-jurisdiction-bounces at icann.org>
> [ws2-jurisdiction-bounces at icann.org] em nome de parminder
> [parminder at itforchange.net]
> *Enviado:* sábado, 19 de agosto de 2017 3:21
> *Para:* ws2-jurisdiction at icann.org <mailto:ws2-jurisdiction at icann.org>
> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of
> one country over ICANN
>
> 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>
> [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>
> <mailto:raphael.beauregardlacroix at sciencespo.fr>
> *Cc:* ws2-jurisdiction at icann.org
> <mailto: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
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