Par minder,
I see a distinction which you may not, but it might help clarify the points at debate.
I see two layers here, for want of a better term. One is the actual work of ICANN's policy making, contract development and so on. That's being done in a fashion supported by a corporation (ICANN the legal entity).
The legal environment in which ICANN the corporation exists is California, USA.
The first, the set of activities that ICANN actually does, are location agnostic. They could happen anywhere, in any jurisdiction. As long as that jurisdiction allowed the legal entity to organise itself as it saw fit, more or less, it'd be fine.
The second, the legal environment, has to be somewhere. I take it from Wolfgang's comments and my own understanding, and actually from this email from you, that there's no "International Law" environment that could take the place of a national jurisdiction in which ICANN could base itself, unless such an international legal basis was created.
For me, personally, the important point is that ICANN related decisions are made within the ICANN system. I am not fussed about the jurisdiction in which the corporation exists as a practical matter so long as that overall point is maintained.
Since it would take years or decades to establish an international law basis under which ICANN could operate, even if it was at all possible, there needs to be *some* jurisdiction used.
California seems fit for purpose in the sense that it has been able to accommodate the WS1 and Stewardship Transition frameworks agreed by the community. The costs of doing all that again to move jurisdiction should, I think, only be entertained if there other currently undisclosed problems with CA, and benefits in another jurisdiction, that outweigh the costs of change.
It's not clear to me that there are such advantages available anywhere given the flexibility of the CA framework. Doesn't mean they don't exist tho, just that I don't see them :-)
If this is a matter of politics per se, then I guess I just don't identify with that as significant. ICANN could be incorporated as a non profit in New Zealand, or India, or the United States -- I really don't mind. As long as the rule of law was clear, the courts were available and competent, and the rules allowed the organisation to be what it needs to be -- why does the particular nationality of the entity in its legal reality matter?
bestJordan
I think the following points are uncontroversial
On 26 June 2016 at 12:16, parminder <parminder@itforchange.net> wrote:
On Sunday 26 June 2016 03:27 PM, Phil Corwin wrote:
There is no international corporate law. Therefore there is no means by which ICANN can be organized as a non-profit entity under international law but for a treaty arrangement such as that for the Red Cross.
Yes, it will be incorporated under special international law created for that purpose.
How long would that take,
First we have to just decide to do it (that is all to be done at this stage - which can be done within weeks or a few months of discussion), then let it take the needed time as long as everyone is working in good faith... It can even be done in 6-12 months, a simple basic text that incorporates existing ICANN functions and processes. There is a clear incentive for those who wants things changed vis a vis US jurisdiction to go through the process fast, and for those preferring the status quo to keep the text short and as far as possible making an exact replica of present ICANN at the international level. Once we agree on these principles, things can move really fast. In the interim, of course the status quo of US jurisdiction remains, and so there is no loss.
what would that cost,
what kind of costs?
and what is the justification?
This brings us to the square one of this discussion, while I thought you/ we were moving forward. The simplest statement of the justification is: a global Internet cannot be run by US law [no legislation (or adjudication) without representation]. For implications of this justification, you may try to answer the questions that I just asked Nigel (and had earlier also asked you).
parminder
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P:
There is something called international law..... Like we are an international community working on an international issue, there is also international law.
W:
I am always perplexed that we have the same discussion again and again. The subject of international law is the state, represented by its government. Governments negotiate treaties. The primary source of international law is the Charter of the United Nations. The seven principles there - including sovereign equality of states - are seen as jus cogens. The rules for treaties are laid down in the the Vienna Convention on the Law of Treaties. Governments can delegate some rights - via an international treaty - to an intergovernmental organisation, as UNESCO, ITU and others.Such organizations become a subject sui generis under international law and can negotiate treaties with their host countries. Governments can also create international courts - as the International court of justice in The Hague or the Rome Statute. But in case of a conflict, the conflicting parties are governments, not private legal or natural persons.
This is rather different from what we have with ICANN. ICANN is a non-for profit private corporations which operates n the public interest. In its Articles of Incorporation ICANN makes clear that in operates within the framework of international law. That means ICANN respect the national sovereignty of states, does not interfere into internal affairs of other countries etc. But ICANN is not a subject under international law. Governments participate in ICANN in an advisory role. The role is specified in the bylaws.
If Parminder proposes an intergovernmental organizations for the governance of the Internet (or an intergovernmental framework convention for the domain name system) he should say so. Theoretically this is an option. Governments are free to negotiate anything as long as they find negotiation partners. It took 25 years to negotiate the 3rd Law of th Sea Convention. It took more than 20 years to negotiate the Rome Treaty. An the negotiations for a treaty on climate change started in the early 1990s. At this stage I do not see any intention of governments to enter into a new intergovernmental codification conference to negotiate an Internet treaty.
BTW, individuals can start a case against private corporations if those corporations violate their rights they have in the country where they live. The case Schrems vs. Facebook is a good example. Facebook is incorporated in the US but does business in Europe. The European Court of Justice decided that Facebook has to respect the rights of privacy of Mr. Schrems, a citizen of Austria.
Hope this helps to end this useless debate.
Wolfgang
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