Marilyn
It didn't matter in WS1 when bylaws were written using legal terms-of-art without understanding what they means, and then WS2 sub-groups set up to determine what the true construction of the terms already adopted were . .
But I agree with your last sentence.
I support Sam's suggestion. Such a sub group or new group could then
advise into the CCWG.
BUT, really global legal expertise matters here.
M
ter
------------------------------------------------------------ ------------
*From:* accountability-cross-community-bounces@icann.org
<accountability-cross-community-bounces@icann.org > on behalf of Sam
Lanfranco <sam@lanfranco.net>
*Sent:* Saturday, December 24, 2016 10:35 AM
*To:* accountability-cross-community@icann.org
*Subject:* Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
Results
I may be an isolated outlier here with regard to how to approach the
core issue of jurisdiction within this CCWG, but I will state my view in
as few words as possible. Jurisdiction will remain a major issue whether
this CCWG includes, or excludes, jurisdiction as a question on its
questionnaire, and whether or not it tries to address the issue of
jurisdiction within this CCWG’s deliberations.
In many ways ICANN is a new form hybrid organization, with its
multistakeholder policy making process, and with its global DNS policy
remit. The jurisdiction issues run both wide and deep, and are not
issues of simply finding the right “residence” for ICANN. They are
about how do we (all stakeholders including governments) figure out how
to handle the jurisdiction related issues posed by ICANN’s
multistakeholder policy making structures, and its global DNS policy
remit. What lessons can we drawn on from experience, and what needs to
be cut from whole cloth (i.e., innovated)?
While I have no objections to jurisdiction being addressed inside this
Accountability CCWG, I do not see this CCWG as an adequate venue for
such an important issue. The work required to address it properly means
that such a dialogue should take place in a venue (CCWG, whatever)
devoted specifically to the jurisdiction issue. This CCWG could start
the process by recognizing that, stating that the issue warrants its own
CCWG (or whatever), and pressing for rapid movement in that direction. I
could elaborate on each of the above points but I hope that the message
is pretty clear. The rationale for such an approach almost self-evident.
Sam Lanfranco, NPOC/csih
On 12/24/2016 9:53 AM, Pedro Ivo Ferraz da Silva wrote:
<rest deleted>------------------------------Dear CCWG-colleagues,
After reading some comments in this email thread, I must admit to be
really disappointed.
Some of our colleagues in the CCWG seem to have forgotten - perhaps on
purpose - that the topic of jurisdiction was allocated to WS2 as a
result of a postponement, since the majority of this group thought it
was not appropriate to deal with it in the pre-transition period due
to time constraints. My government was not in favor of postponing the
discussion on jurisdiction, as we consider it was – and remains – a
fundamental aspect of a new ICANN truly governed by the
multistakeholder community without any pre-conditions, but in respect
to the viewpoint of the other colleagues, we agreed to move it to WS2.
Now that time has come to properly deal with this topic, it is quite
frustrating to notice that some participants insist on limiting
and/or procrastinating this debate, including by using the absurd
argument that any discussion around jurisdiction cannot put into
question any aspect already decided in WS1, which is embedded in the
California law. We cannot see good faith in that kind of circular
argument.
In our view, the discussion around the inclusion or exclusion of Q.4
shows quite clearly that some of those who have fiercely objected to
any jurisdiction debate during WS1 are maintaining their objection in
WS2 as well. On that particular topic (Q.4) we concur with the view
that upon deciding on institutional arrangements we should not only
consider already occurred cases but also take into account logically
strong possibilities. The responses to the questionnaire should thus
help us to deal with all possibilities associate to jurisdiction. In
case any unsubstantiated opinion will be received, it should be
summarily discarded.
>From the various jurisdiction calls it became quite evident that a
substantial part of the subgroup - mainly non-US - has great interest
in examining and debating ways through which we can make sure that any
issue associated to jurisdiction be addressed in a way compatible
with the company's international remit of coordinating Internet
public identifiers. In that context, I would like to highlight my
government´s understanding that although the proposed questionnaire
under discussion may provide us with some relevant factual
information, it does not in any way cover all aspects of interest. We
would like to refer, for example, to the list of issues compiled by
Kavouss Arasteh as per his 13 December 2016 e-mail. We would also
refer to questions that have continuously been asked by Parminder,
apparently without any satisfactory answer. Those issues and questions
include, for example, dispute settlement related topics, which
demonstrates, in our view, that jurisdiction cannot be seen purely
from businesses´ viewpoint. As someone has stated, we also need to
look at the relationship between ICANN and third parties and
adequately consider non-contracted Parties that might be affected by
ICANN´s acts and/or omissions.
>From the perspective of the Brazilian government, the topics raised by
Kavouss, Parminder and others are issues of particular interest
which, needless to say, will not be adequately addressed through the
mere analysis of the answers provided to the questionnaire, whether it
includes Q.4 or not.
My government has expressed its interest in pursuing discussion on
jurisdiction through those angles many times – both during the IANA
transition process and well before that. Other governments have done
the same, as well as a sound number of civil society organizations
around the globe. The "NETmundial Multistakeholder Statement", while
calling for the internationalization of ICANN, clearly expresses this
as well. Let me emphasize, by the way, that the NETmundial Statement
calls for ICANN´s internationalization and not for it to become an
intergovernmental organization. Those are two different notions that
should not be confounded.
If this subgroup fails to deal with the multidimensional issues
associated to jurisdiction properly , it may be applauded by some
segments , but it will not contribute to putting in place a framework
that will ensure the shared goal of making ICANN a legitimate entity
in the eyes of all stakeholders, including governments. To achieve
that, no issues should be discarded as "non important" or "not yet
verified". While preserving the essence of what was achieved in WS1,
innovative thinking, including on the part of persons with legal
expertise, will be needed. Is it worth to wipe an important debate
under the carpet just to comfort one or a few stakeholder groups while
discontenting others? What kind of legitimacy is such a biased and
limited exercise likely to have within the international community? .
It is time the subgroup - including the coChairs - make a honest
assessment of the various viewpoints related to ICANN's jurisdiction
and conduct the debate as openly as possible in order to address all
the concerns and interests behind it.
Kind regards,
Sec. Pedro Ivo Ferraz da Silva
Division of Information Society
Ministry of Foreign Affairs - Brazil
T: +55 61 2030-6609------------------------------ ------------
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-c ommunity
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-c ommunity