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@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@hotmail.com]
Sent: Sunday, July 10, 2016 7:41 AM
To: Schweighofer Erich <erich.schweighofer@univie.ac.at>; Mueller, Milton L <milton@gatech.edu>; Greg Shatan <gregshatanipc@gmail.com>; Aikman-Scalese, Anne <aaikman@lrrc.com>
Cc: Thomas Rickert <thomas@rickert.net>; Accountability Cross Community <accountability-cross-community@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@univie.ac.at
To: milton@gatech.edu; gregshatanipc@gmail.com; AAikman@lrrc.com
Date: Sat, 9 Jul 2016 08:50:04 +0000
CC: thomas@rickert.net; accountability-cross-community@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@icann.org [mailto:accountability-cross-community-bounces@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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