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

Mon Aug 21 13:50:44 UTC 2017

Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest.

________________________________
De: Thiago Braz Jardim Oliveira
Enviado: segunda-feira, 21 de agosto de 2017 9:24
Para: Mueller, Milton L; parminder; ws2-jurisdiction at icann.org
Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN

Dear Milton,
Dear All,

Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation.

There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions.

The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible).

Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as Helms–Burton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community.

Best,

Thiago

________________________________
De: ws2-jurisdiction-bounces at icann.org [ws2-jurisdiction-bounces at icann.org] em nome de parminder [parminder at itforchange.net]
Enviado: segunda-feira, 21 de agosto de 2017 7:45
Para: ws2-jurisdiction at icann.org
Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN

On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote:
Thiago
I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if  I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community.

We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community".

Now that we agree on the objectives of what we want, it should be easy to go ahead.

It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should.

Such customised immunity for ICANN will meet both the objectives that we agreed on above.

parminder

--MM

From: ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org> [mailto:ws2-jurisdiction-bounces at icann.org] On Behalf Of Thiago Braz Jardim Oliveira
Sent: Sunday, August 20, 2017 10:17 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com><mailto:paul.rosenzweig at redbranchconsulting.com>; '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: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN

Dear Paul,

If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals.

As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest.

For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country)

Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2.

Best,

Thiago

________________________________
De: Paul Rosenzweig [paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>]
Enviado: sábado, 19 de agosto de 2017 12:06
Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX'
Cc: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals)  … which activities?  You say “certain of its activities” – which?  And immune from which law?

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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From: ws2-jurisdiction-bounces at icann.org<mailto: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 10:22 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: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN

Dear Raphael,

Is my "stance of one seeking complete immunity"? No, that's not what I said.

Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others.

Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions.

Best,

Thiago

________________________________
De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix at sciencespo.fr<mailto:raphael.beauregardlacroix at sciencespo.fr>]
Enviado: sábado, 19 de agosto de 2017 9:46
Para: Thiago Braz Jardim Oliveira
Cc: ws2-jurisdiction at icann.org<mailto:ws2-jurisdiction at icann.org>
Assunto: 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<mailto: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<mailto:ws2-jurisdiction-bounces at icann.org> [ws2-jurisdiction-bounces at icann.org<mailto:ws2-jurisdiction-bounces at icann.org>] em nome de parminder [parminder at itforchange.net<mailto: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 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<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 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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