[Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN

Sun Aug 20 03:54:19 UTC 2017

I appreciate the thought exercise but the practical political reality in
the US is that Congress would never pass such legislation nor would
President Trump sign such a bill. Now, back to reality...

On Sat, Aug 19, 2017, 10:41 PM parminder <parminder at itforchange.net> wrote:

> On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:
>
> Dear Parminder
>
>
>
> Of course we aren’t inventing the concept of host country agreements.  But
> those are specific agreements with specific provisions --  Are  you saying
> that the WIPO agreement in Switzerland is the model for what we should have
> in the US for ICANN?  If so, say so directly.  If not, then tell me what
> you think should be in the agreement.
>
>
> Dear Paul, I have always been as direct as possible. Have said it several
> times,
>
> as per the report that I have been citing several times
> <https://archive.icann.org/en/psc/corell-24aug06.html>,
>
> and since we are looking here at (1) immunity for an organisation that is
> not a treaty organisation under international law but a US NPO, and (2)
> immunity from the US jurisdiction and not the Swiss,
>
> the model under which say the International Fertilizer Development Centre,
> a US based NPO, has been provided immunity under the UN International
> Organisations Immunity Act,
>
> in my view, will be the best one to look at.
>
> I am not a lawyer, neither I am US based, and have limited access to info
> from within the US. But we need more information in the above regard, an
> exhortation also made by the author of the cited ICANN report. I have also
> sought such information earlier in this group, but to no avail.
> Unfortunately, it seems that access to information is not available in a
> neutral way to this group to function adequately to be able to fulfil its
> mandate, which is, I must remind, about accountability of ICANN to the
> global public and not just the US.
>
> Response to your below question in a separate email.
>
>
> parminder
>
>   I am happy to stop discussing general propositions it you will – which
> is why I asked for specifics.  OFAC?  Yes, I understand that.  What else?
>
>
>
>
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> 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
> <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *parminder
> *Sent:* Saturday, August 19, 2017 10:56 AM
> *To:* ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of
> one country over ICANN
>
>
>
>
>
>
>
> On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
>
> Exactly right Raphael.  To cite just a few examples, here are categories
> of what would be considered public laws in the US from which I assume
> nobody thinks ICANN should be exempt – criminal law; occupational health
> and safety law; general public zoning laws relating to urban development.
>   The list is just a starter …..
>
>
>
> If I’m wrong – if you really do think that ICANN should be exempt from the
> criminal laws of the countries where it operates – then perhaps you should
> say so.  I would profoundly disagree, but at least we could discuss
> substance.
>
>
> Dear Paul
>
> We are not inventing host country agreements here. This isnt being
> proposed for the first time. There is well established set of precedents
> and established practices in this regard. If a WIPO employee, WIPO having
> judicial immunity in Switzerland, commits a murder in Geneva, or even a
> financial fraud, everyone knows what to do and what will happen. Lets come
> out of this contesting elementary and well-established facts.
>
>
>
>
>
> And to be clear I assume, as well, that nobody thinks that the ICANN
> officials and institutions in Istanbul and Singapore and wherever else
> ICANN has offices should be exempt from Turkish or Singaporean law.  I
> certainly don’t.
>
>
> Yes, not in criminal matters. And as I mentioned in an earlier email, it
> is possible for ICANN to also seek immunity in these jurisdictions as well.
> But that is not so important, these offices do not make and implement
> policy. Respective jurisdictions cannot force them to change ICANN's global
> policies. Even ifthey foolishly  get into trying such a thing, ICANN can
> simply close down its office there and shift to another place, without
> affecting ICANN global work in any way. But not with US gov's actions or
> orders against ICANN. That is the difference.
>
> parminder
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> 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
> <ws2-jurisdiction-bounces at icann.org>] *On Behalf Of *Raphaël
> BEAUREGARD-LACROIX
> *Sent:* Saturday, August 19, 2017 8:46 AM
> *To:* Thiago Braz Jardim Oliveira <thiago.jardim at itamaraty.gov.br>
> <thiago.jardim at itamaraty.gov.br>
> *Cc:* ws2-jurisdiction at icann.org
> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of
> one country over ICANN
>
>
>
> Parminder: you seem to be wanting immunity from "US public law," but
> unless you can define that more precisely than "all the laws that affect
> ICANN except the CCC" I would not be inclined to see that in as a
> recommendation in the final report. Yes, I have read all the materials that
> you have submitted, and yes there are many NGOs that have obtained (some
> form of) immunity under the said US act, but unless we can know immunity
> from what, that does not tell us much. And even if we did, we are still
> stuck with the problem of defining what we would want ICANN to be immune
> from. (except if we go with what I understand to be Thiago's stance)
> "Public law" is extremely ambiguous and equivocal and is not a category we
> can rely on.
>
>
>
> Thiago: is your stance one of seeking complete immunity? And besides, I am
> not sure how granting ICANN immunity of any sort would foster more
> participating in ICANN-related internet governance decision-making and
> debate. And don't you think it would then make ICANN *less *accountable?
> If I had to rank organisations in terms of accountability, to me ICANN
> ranks much higher than any treaty organisation (UN or OECD for example)
>
>
>
>
>
> 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <
> thiago.jardim at itamaraty.gov.br>:
>
> 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 [
> 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
> *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
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> 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
> <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>
> <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 an
> ICANN 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>:
>
> 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 in various 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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> --
>
> 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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