On Sunday 19 June 2016 09:17 PM, Phil Corwin wrote:

Paraminder:

 

You keep advocating for ICANN to be transferred to “international jurisdiction”, but can you go beyond that slogan and articulate exactly what organizational form and subject to what enforcement authority you refer?


Phil,

Thanks for your interest in this subject. As noted by Seun, in fact I have discussed my proposed organisational form on several elists, like ISOC policy list, ALAC, and IG civil society lists, and so it is not just a slogan. But I do understand that institutional changes are a slow and laborious processes, and I am happy to describe it all over again, especially when this space is now officially mandated to discuss this issue.

 I presume that you are not advocating that ICANN relocate its legal jurisdiction to that of another nation, as that would simply raise the same concerns that you have expressed in regard to the U.S. legal system (not U.S. Government control, as you incorrectly infer)  within the context of a different nation-state.


You are right. Taking it to another nation would not solve the problem, and doing that is *not* my proposal. Though with a small caveat. A county like Switzerland voluntarily offers jurisdictional immunity to international organisations like the Red Cross, and that kind of a thing though not ideal is still better than the present situation. It is open for the US government to propose such an arrangement.

As to your correcting me about "US legal system" and "not US government control", I dont think I used the word "control" in any of my emails. As for government, it is my understanding that this term included all branches of the state, legislative, judicial and executive. As my email says "... US jurisdiction (meaning US government, its all branches)...". Even speaking about just the executive branch, do remember that their remit also equally applies over ICANN, for instance that of the Office of the Foreign Assets Control. Remember also that the FCC may have forborne from exercising its authority on Internet names and numbers, it nevertheless has it, and can apply it when it wants. And so on. An endless number of executive bodies may have such remit. 

Also, as bit of an aside, it is interesting to note that with respect to the US gov's role, it is never 'US gov control', even when, as at present, their role is direct and that of the principal in the whole set up of names and numbers. One the other hand,  the slightest mention of the lightest role of the UN, and it is directly elevated to 'UN control'... If we have to undertake the 'jurisdiction' discussion seriously, *in this international forum*, I think we need to adopt a more neutral attitude and vocabulary. Aside ends.

 

If you are advocating that ICANN become a UN-type IGO then such a result is directly contradictory to the conditions set by the NTIA for the transition – and if there is widespread support for such a bait-and-switch result we should all know it now before the transition occurs.


No, I do not propose ICANN to become an IGO. I propose framing of international law, no doubt in an inter-gov manner (to which US gov will have to give assent, initially, as well as to any later amendments, which can be rendered constitutionally difficult) which recognises ICANN in, more or less,  exactly the same form as it is now, *exactly the same multistakeholder form*. Such form is to be inscribed in the incorporating law - for ever. Would you consider current or even post-transition ICANN to be a gov body, since it is incorporated under a gov made and administered law? (You and others are not ready to consider it a gov body even when, as currently, it functions directly as a contractor of the US gov - what is rather worse than double standards. Shows how hopelessly loaded this debate is. )

I have to repeat what I said earlier in this thread:

When ICANN can be considered multistakeholder, and not a gov organisation, even when incorporated under US law, and subject to it, laws which are not only made only by governments , but also can any time be changed by them

why can ICANN not be considered multistakeholder, as incorporated under international law, and similarly made in and by an inter-gov system.

Therefore, my proposal does not contradict conditions set by NTIA because it does not "replace the NTIA role with a government-led or an inter-governmental organization solution". What it seeks to replace is the US jurisdiction, something nowhere mentioned in the NTIA conditions.

 

Making ICANN subject to international jurisdiction also raises the question of what adjudication forum would address relevant legal disputes, which in ICANN’s case are primarily of contract interpretation and enforcement. The International Criminal Court would not be relevant; and the International Court of Justice only permits nation-states to be parties before it.


The Internet is a major and unique new global phenomenon - almost setting off a new social epoch. Its governance will require innovations, but these are best done within democratic norms, and building on existing democratic institutions. We will need to work on the means of solving legal disputes, and be open to new institutional forms.

Much development has been taking place on managing private disputes in the international space in the area of Investor State Dispute Settlement (ISDS). It has a history of many years, going back decades, especially with the World Bank's The International Centre for Settlement of Investment Disputes. Currently, most trade treaties have some ISDS provisions. And jurisprudence in this area is evolving fast. The EU recently proposed a two tier 'Investment Court System' populated by regular judges. Domain related disputes are much less contentious that investor-state disputes. Setting up a treaty based court for the purpose of solving ICANN related dispute will not be difficult, and can be done by the same treaty that sets the international law to incorporate ICANN as an international body. It could perhaps even be possible to make spaces within the International Court of Justice, by making suitable amendments to its mandate. Many things are possible. We need to first make value based choices and decide to move in that direction. You cannot have systems and institutions all in place, ready to be switched on pressing of a button, even before you make principles based decision to move towards a more intentionally democratic and legitimate system.


There is also the issue of recognition of ICANN’s proposed “international jurisdiction” status. Generally, in the instance of organizations created by multilateral treaty, each nation has the option of recognizing and participating in the arrangement – or not.


It is not as if non US countries have currently formally recognised ICANN's US jurisdiction. But the system is working, isnt it. It would still work with an international ICANN even with countries that may not recognise and participate in the new arrangements. Though I dont see why any country wont participate. Or are you thinking that some countries may get so unhappy that ICANN has moved out of US jurisdiction to an international one that they may withdraw from accepting ICANN's names and numbers services? (Sorry, rhetorical).

 

My own views on this subject are quite clear


I hope mine are clear too. But always happy to explain and clarify further. The email is already too long. I will respond to the points you make below in a separate one, later..

regards, parminder

– see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_jurisdiction/ :

For the sake of legal clarity and organizational stability, it is incumbent upon WS2 participants to resolve this matter as soon as feasible — and to come down decisively in favor of a permanent link between ICANN and U.S. jurisdiction. If this were a matter of first impression then impartial consideration of an alternative national jurisdiction might be in order. But it is a not a matter of first impression, and multiple factors weigh in favor of enshrining ICANN's permanent status as a California non-profit corporation in a Fundamental Bylaw:

 

If you are going to advocate for ignoring all the points cited above and ICANN’s transfer to “international jurisdiction” then I would respectfully ask that you go beyond that phrase and enlighten us all as to exactly what form this would take, how it would be achieved, how it would ensure that ICANN would not become subject to governmental control, and in which venue contract and other legal disputes pertaining to ICANN would be resolved? You state, “There are hundreds of international organizations functioning under international law, and so can ICANN”, but can you go beyond that and provide examples of relevant examples for ICANN that are not UN agencies and thereby subject to multilateral political influence?

 

Until you provide us with the “simple logic” of such further details I must regard your advocacy as merely rhetorical with no well-considered substance behind it, and thereby incapable of amassing consensus support within an ICANN community that has just labored two-plus years to create transition and accountability proposals that are firmly rooted in U.S. jurisdiction.

 

Sincerely,

Philip

 

 

 

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From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of parminder
Sent: Sunday, June 19, 2016 3:12 AM
To: Seun Ojedeji
Cc: accountability-cross-community@icann.org
Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa

 

 

On Sunday 19 June 2016 12:11 PM, Seun Ojedeji wrote:

Hello Parminder,

As an African, I would tend to agree with your point and wish that your conclusion point was the case (as a reactive measure). However as you know, we have discussed this extensively in the past (on different fora) and we found that the means to the end of such is so complicated and the end itself would ultimately create a govt lead ICANN which i certainly don't want.


If ICANN functioning under California non profit law - made by government - and subject to US jurisdiction - also made of and by governments (and governments alone)  - can continue to be seem and treated as a multistakeholder organisation, to your and others' satisfaction, there is simply no reason why ICANN cannot be and function similarly under international jurisdiction, created by international law.

Your preferring US law/ jurisdiction over international law/ jurisdiction is, simply and nothing more than, a statement of your preferring the US jurisdiction over international jurisdiction ( which, while you have a right to your choices, I consider democratically unfortunate). None is less complex that the other. There are hundreds of international organisations functioning under international law, and so can ICANN. And if ICANN has some special contexts and needs, that would be met by relevant innovations in international law, but not by a democratic regression to subjecting the world to the US law. Democracy is precious, and people have done much to achieve it. Please dont treat it lightly, citing technicalities against it. That is extremely unfortunate. Sorry for the analogy but it directly applies; every tyrant/ dictator is prone to argue that democracy is messy, and difficult and, as you say, complicated. But such an argument does not carry, does it.

To call an ICANN which is constituted under US law, and fully answerable to US jurisdiction (meaning US government, its all branches), as fully multistakeholder;

and, at the same time, an ICANN functioning exactly in the same manner, but now under international law and jurisdiction, as (to quote you) becoming a government let ICANN

is simply to make a misleading statement.

Although, the fallacy contained in it is as clear as daylight, among status quoists circles this statement or argument continues to be made and re-made. But, for other than the fully converted and therefore impervious to simple logic, and demands of that high value of democracy, it takes away nothing  from the my arguments regarding the unfairness of ICANN being subject to US jurisdiction, and the urgent need to move it to international jurisdiction, which you are right, I have often made on various fora, and will keep making. It is a political act.

regards, parminder


Regards
Sent from my LG G4
Kindly excuse brevity and typos

On 19 Jun 2016 07:28, "parminder" <parminder@itforchange.net> wrote:

 

On Sunday 19 June 2016 11:31 AM, Jordan Carter wrote:

I may have missed something, Parminder, but isn't it a plus rather than a negative for ICANN accountability that process errors can be appealed and the company held to account for them?


Jordan

In may make ICANN accountable, but to a system that is unaccountable to the global public, and is only accountable to the US public (there could even be cases where these two could be in partial conflict) - that in sum is the jurisdiction issue. ICANN accountability issue is different, though linked, bec it has to be accountable, but to the right system, which itself is accountable to the global public. Different 'layers' of accountability are implicated here, as people in IG space will like to say!

Here the issue is, a US court has no right to (exclusively) adjudicate the rights of the African people, bec African people had no part in making or legitimising the system that the US court is a part of. Dont you see what problem we will be facing if the US court says that fairness of process or whatever demands that .africa goes to DCA. If you were an African, what would you feel?

An ICANN under international law will be subject to only an international judicial process, which Africa is equally a part of, and gives legitimacy to.

parminder




 

Jordan

 

On 19 June 2016 at 07:26, parminder <parminder@itforchange.net> wrote:

 

On Sunday 19 June 2016 04:13 AM, Paul Rosenzweig wrote:

The Economist | A virtual turf war: The scramble for .africa http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7Cd


Not that this fact is being discovered now, but it still is the simplest and clearest proof that US jurisdiction over ICANN's policy processes and decisions is absolutely untenable. Either the US makes a special legal provision unilaterally foregoing judicial, legislative and executive jurisdiction over ICANN policy functions, or the normal route of ICANN's incorporation under international law is taken, making ICANN an international organisation under international law, and protected from US jurisdiction under a host country agreement.

parminder

Paul Rosenzweig



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