Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
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. 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-califo...
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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-- Jordan Carter Wellington, New Zealand +64 21 442 649 jordan@jordancarter.org.nz _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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 <mailto: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 <mailto: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-califo...
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
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Jordan and all, You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles. But in this case of dot africa, the issue is too obvious that dotconnectafrica can’t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s). All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified. dotconnectafrica argued through the IRP that ICANN wasn’t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn’t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital. ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa. In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I’m too disappointed because we are the hostage of a system that privilege the private interest over the African community one. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net> a écrit :
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" < <mailto:parminder@itforchange.net>parminder@itforchange.net <mailto: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 < <mailto:parminder@itforchange.net>parminder@itforchange.net <mailto: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>http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7Cd <http://www.economist.com/news/middle-east-and-africa/21700661-lawyers-califo...> 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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
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Thank you, Tijani, for just tossing out accountability. el -- Sent from Dr Lisse's iPad mini 4
On 19 Jun 2016, at 10:55, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can’t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn’t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn’t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I’m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net> a écrit :
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-califo...
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Wellington, New Zealand
+64 21 442 649 jordan@jordancarter.org.nz
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Welcome to the world of competing interests, advanced to the maxiumn by all lawful means. This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal. On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can’t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn’t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn’t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I’m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itforchange.net>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 <<mailto:parminder@itforchange.net>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>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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-- Jordan Carter Wellington, New Zealand
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Honestly, I was just sharing an interesting article -- not meaning to reopen old wounds. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Sunday, June 19, 2016 6:54 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Welcome to the world of competing interests, advanced to the maxiumn by all lawful means. This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal. On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica cant get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasnt fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasnt a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, Im too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
---------------------------------------------------------------------- ------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 ---------------------------------------------------------------------- -------
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itforchange.net>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 <<mailto:parminder@itforchange.net>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-law yers-california-are-denying-africans-their-own-domain-scramble?frs c=dg%7Cd>http://www.economist.com/news/middle-east-and-africa/2170 0661-lawyers-california-are-denying-africans-their-own-domain-scra mble?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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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
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Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process Roelof On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itforchange.net>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 <<mailto:parminder@itforchange.net>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-lawyer s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy ers-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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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
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+1 ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------
Le 20 juin 2016 à 14:59, Roelof Meijer <Roelof.Meijer@sidn.nl> a écrit :
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itforchange.net>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 <<mailto:parminder@itforchange.net>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-lawyer > s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 > Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy > ers-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 > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > <mailto:Accountability-Cross-Community@icann.org> > > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Roelof, Is it not perhaps a little early to say this, in particular since there is no "outcome" yet? As anyone, including that Knowitall from that third rate University is well aware of, I have repeatedly stated that Sockpuppy's case has no merits whatsoever. She must however be allowed to try and make her case, and in particular must she be allowed to apply for protection against irreversible actions to be taken (against her). Which she has done by way of an Ex-Parte Temporary Restraining Order and schh TROs have a vastly reduced requirement with regards to merit. The merits have not been assessed yet in the case of DCA vs ICANN, though the (same) (alleged) merits have been resoundingly rejected in the DCA vs ZACR case. So, I think one should let the matter run its course. One might just be surprised about the wisdom of the Court. And an even more resounding rejection of Sockpuppy's case will surely afford opportunity for profound articles in reputed magazine. greetings, el On 2016-06-20 14:59 , Roelof Meijer wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process
Roelof [...]
Hi Phil, Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate. I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509 Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct. The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations. https://en.wikipedia.org/wiki/Black_swan_theory The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward. In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction. Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist. There are numerous Reflexive Law strategies. 1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN. 2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated. 3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted. While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best". On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itforchange.net>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 <<mailto:parminder@itforchange.net>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-lawyer
>s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 >Cd> http://www.economist.com/news/middle-east-and-africa/21700661-lawy >ers-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 > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org ><mailto:Accountability-Cross-Community@icann.org> > >https://mm.icann.org/mailman/listinfo/accountability-cross-community
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+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
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Sent from my LG G4 Kindly excuse brevity and typos On 20 Jun 2016 6:41 p.m., "Guru Acharya" <gurcharya@gmail.com> wrote:
There are numerous Reflexive Law strategies.
1) The first simple strategy is an information strategy wherein ICANN
must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN.
SO: Do you doubt that this is not the case at the moment (especially with those not in violation of any NDA)?
2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated.
SO: Objective index to be maintained/implemented by who? And once the change happen, I assume we most likely will repeat the same process at the next jurisdiction. What would we have solved by doing that.
3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted.
SO: What would duplicate here mean in practice? The organisation PTI doesn't matter much, who does the record keeping role itself is what matters so having a duplicate organisation would only be redundant in this case. Regards
On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the
<right>
outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" < accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
-------------------------------------------------------------------------
---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
-------------------------------------------------------------------------
----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itfo
Hi Seun, My focus was on framing of the debate and suggesting the reflexive approach. The illustrations of strategies towards the end of the mail were mere illustrations and not the intent. I would argue with you about the remarks you make but that battle is for later. I would be happy to hear you take the debate forward by suggesting alternate reflexive strategies in case you agree with the overall reflexive approach but disagree with my illustrative strategies. If you want to continue arguing that the US jurisdiction is a land with no black swans then I'm helpless. Regards, Guru On 20 Jun 2016 23:36, "Seun Ojedeji" <seun.ojedeji@gmail.com> wrote:
Sent from my LG G4 Kindly excuse brevity and typos On 20 Jun 2016 6:41 p.m., "Guru Acharya" <gurcharya@gmail.com> wrote:
There are numerous Reflexive Law strategies.
1) The first simple strategy is an information strategy wherein ICANN
must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN.
SO: Do you doubt that this is not the case at the moment (especially with those not in violation of any NDA)?
2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated.
SO: Objective index to be maintained/implemented by who? And once the change happen, I assume we most likely will repeat the same process at the next jurisdiction. What would we have solved by doing that.
3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted.
SO: What would duplicate here mean in practice? The organisation PTI doesn't matter much, who does the record keeping role itself is what matters so having a duplicate organisation would only be redundant in this case.
Regards
On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the
<right>
outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" < accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
-------------------------------------------------------------------------
---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
-------------------------------------------------------------------------
----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" > <<mailto:parminder@itfo
Dear, I think at this moment, we can not think what is the best jurisdiction. We are in the process of transition and if everything ends well, NTIA will not have any interference in ICANN. The jurisdiction of USA at this time, is as good or bad as any in the world. This has already been discussed. We end this implementation process, without suggesting any modification, as is required by this process. After everything is finished, you can open to debate. Kind regards Alberto Soto De: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] En nombre de Guru Acharya Enviado el: lunes, 20 de junio de 2016 02:41 p.m. Para: Roelof Meijer <Roelof.Meijer@sidn.nl>; milton@gatech.edu CC: accountability-cross-community@icann.org Asunto: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Hi Phil, Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate. I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509 Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct. The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations. https://en.wikipedia.org/wiki/Black_swan_theory The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward. In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction. Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist. There are numerous Reflexive Law strategies. 1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN. 2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated. 3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted. While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best". On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl> > wrote: Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process Roelof On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net> > wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net <mailto:parminder@itforchange.net> >> a écrit :
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" <<mailto:parminder@itforchange.net <mailto:parminder@itforchange.net> >parminder@itforchange.net <mailto: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 <<mailto:parminder@itforchange.net <mailto:parminder@itforchange.net> >parminder@itforchange.net <mailto: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-lawyer s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy ers-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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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz> <mailto:jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz> >
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I appreciate the input. However, my reflexive reaction to what you have proposed is that it is an enormous amount of time, effort, and legal costs to prepare for a “blacl swan” event that may never occur. But I’m sure we can and will discuss this at length in WS2. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Guru Acharya Sent: Monday, June 20, 2016 1:41 PM To: Roelof Meijer; milton@gatech.edu Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Hi Phil, Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate. I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509 Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct. The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations. https://en.wikipedia.org/wiki/Black_swan_theory The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward. In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction. Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist. There are numerous Reflexive Law strategies. 1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN. 2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated. 3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted. While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best". On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process Roelof On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net<mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>> a écrit :
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" <<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>parminder@itforchange.net<mailto: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 <<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>parminder@itforchange.net<mailto: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-lawyer s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy ers-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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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> <mailto:jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz>>
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+1 Parminder. Adapting a best practice approach as suggested and assented by the US Congress would guarantee ICANN's independence and educate the court on what can be argued for 'public interest' or seen as the right process when the issues in question are related to another country that isn't under their jurisdiction. -- *---------* *Akinbo, Adebunmi Adeola* *(signature: Akinbo A. A. Cornerstone).* On Mon, Jun 20, 2016 at 9:32 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
I appreciate the input.
However, my reflexive reaction to what you have proposed is that it is an enormous amount of time, effort, and legal costs to prepare for a “blacl swan” event that may never occur.
But I’m sure we can and will discuss this at length in WS2.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Guru Acharya *Sent:* Monday, June 20, 2016 1:41 PM *To:* Roelof Meijer; milton@gatech.edu *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
Hi Phil,
Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate.
I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509
Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct.
The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations.
https://en.wikipedia.org/wiki/Black_swan_theory
The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward.
In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.
Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist.
There are numerous Reflexive Law strategies.
1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN.
2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated.
3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted.
While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best".
On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org
on behalf of nigel@channelisles.net> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> a écrit :
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" <<mailto:parminder@itforchange.net>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 <<mailto:parminder@itforchange.net>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-lawyer
>s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 >Cd> http://www.economist.com/news/middle-east-and-africa/21700661-lawy >ers-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 > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org ><mailto:Accountability-Cross-Community@icann.org> > >https://mm.icann.org/mailman/listinfo/accountability-cross-community
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On Tuesday 21 June 2016 02:02 AM, Phil Corwin wrote:
I appreciate the input.
However, my reflexive reaction to what you have proposed is that it is an enormous amount of time, effort, and legal costs to prepare for a “blacl swan” event that may never occur.
The term 'black swan' is inappropriate here, we are talking about logically imminent incursions of the US state - most like a judicial one first - on ICANN's (global) policy authority. (In my last email I cite the case of a new privately owned gTLD falling foul of US authorities, used to seizing domains by ordering the registries, whereby now they can only send the seizure order to the party in control of the root zone. They have a legal obligation to do it, and not feel shy bec it is ICANN.)
But I’m sure we can and will discuss this at length in WS2.
Is this not the WS2 ? Why when you said that jurisdiction issue should be settled asap, and I agree, defer the discussion now? parminder
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell***
* *
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Guru Acharya *Sent:* Monday, June 20, 2016 1:41 PM *To:* Roelof Meijer; milton@gatech.edu *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
Hi Phil,
Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate.
I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509
Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct.
The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations.
https://en.wikipedia.org/wiki/Black_swan_theory
The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward.
In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.
Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist.
There are numerous Reflexive Law strategies.
1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN.
2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated.
3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted.
While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best".
On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>
on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>>> a écrit :
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" <<mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>>parminder@itforchange.net <mailto: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 <<mailto:parminder@itforchange.net
<mailto:parminder@itforchange.net>>parminder@itforchange.net <mailto: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-lawyer >s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 >Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy >ers-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 > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> ><mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > >https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Jordan Carter Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz> <mailto:jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>>
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See comments below Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: parminder [mailto:parminder@itforchange.net] Sent: Tuesday, June 21, 2016 10:47 AM To: Phil Corwin; Guru Acharya; Roelof Meijer; milton@gatech.edu Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa On Tuesday 21 June 2016 02:02 AM, Phil Corwin wrote: I appreciate the input. However, my reflexive reaction to what you have proposed is that it is an enormous amount of time, effort, and legal costs to prepare for a "blacl swan" event that may never occur. The term 'black swan' is inappropriate here, we are talking about logically imminent incursions of the US state - most like a judicial one first - on ICANN's (global) policy authority. (In my last email I cite the case of a new privately owned gTLD falling foul of US authorities, used to seizing domains by ordering the registries, whereby now they can only send the seizure order to the party in control of the root zone. They have a legal obligation to do it, and not feel shy bec it is ICANN.) Guru posited the term "the black swan scenario" and I was reacting to that. Beyond that, I reject the notion that a U.S. court ruling impacting an ICANN policy (e.g., in regard to an alleged violation of antitrust law) is an "incursion of the U.S. state", as I equate the term U.S. state as equivalent to the U.S. government But I'm sure we can and will discuss this at length in WS2. Is this not the WS2 ? Why when you said that jurisdiction issue should be settled asap, and I agree, defer the discussion now? My understanding is that the WS2 process kicks off officially on Sunday, June 26th in Helsinki. That's all I meant. parminder Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Guru Acharya Sent: Monday, June 20, 2016 1:41 PM To: Roelof Meijer; milton@gatech.edu<mailto:milton@gatech.edu> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Hi Phil, Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate. I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509 Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct. The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations. https://en.wikipedia.org/wiki/Black_swan_theory The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward. In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction. Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist. There are numerous Reflexive Law strategies. 1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN. 2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated. 3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted. While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best". On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl<mailto:Roelof.Meijer@sidn.nl>> wrote: Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process Roelof On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> on behalf of nigel@channelisles.net<mailto:nigel@channelisles.net>> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net<mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>> a écrit :
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" <<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>parminder@itforchange.net<mailto: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 <<mailto:parminder@itforchange.net<mailto:parminder@itforchange.net>>parminder@itforchange.net<mailto: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-lawyer s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy ers-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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On Wednesday 22 June 2016 01:12 AM, Phil Corwin wrote:
snip
Guru posited the term “the black swan scenario” and I was reacting to that. Beyond that, I reject the notion that a U.S. court ruling impacting an ICANN policy (e.g., in regard to an alleged violation of antitrust law) is an “incursion of the U.S. state”, as I equate the term U.S. state as equivalent to the U.S. government
With 'US government' here perhaps you mean the executive branch of the government. It is very odd that do not include judiciary in what you take to be the 'US State' - I have never seen anyone not include all branches of the state - legislative, judicial and executive - in the conception of state. While the term 'government' sometimes does get used more loosely (but never the term 'state'), even 'government' in fact includes all these three branches. You may be interested to know how US gov see itself - https://www.usa.gov/branches-of-government - as being composed of all these three branches. So, not sure what to make of your rejecting 'the notion that...'. But I am not here interested in semantics (although I have been on the receiving end here over my alleged legal illiteracy). As a non US citizen I prefer to be subject nether to US judiciary, nor executive nor legislature, especially for a issue of global policy making (as ICANN does). I am sure you a US citizen would not similarly want to be subject to Indian jurisdiction. I have often asked this question to the many American who rather unabashedly push for US law and state to have a global remit, as you, and others are doing now, but never got an answer. Maybe you would like to try it. Can you honestly say that had ICANN been in the Indian jurisdiction, you would have accepted it (however good you view otherwise may had been about Indian laws etc)? Please do try to think about it - visualise it in your mind. This is 2016, not the ninetieth century, lets work on some basic values of democracy, and political equality of people and groups.
My understanding is that the WS2 process kicks off officially on Sunday, June 26^th in Helsinki. That’s all I meant.
No problem. Look forward to a discussion on the subject, before or after the 26th. Best wishes for Helsinki. parminder
parminder
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*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Guru Acharya *Sent:* Monday, June 20, 2016 1:41 PM *To:* Roelof Meijer; milton@gatech.edu <mailto:milton@gatech.edu> *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
Hi Phil,
Your five points arguing that the California jurisdiction is the best are profound but they unfortunately reduce the debate to a simple question of "which jurisdiction is best". There are many other ways of looking at the debate and I hope you would appreciate the concerns of emerging countries and seek to find a middle ground while framing the debate.
I first explain your lens of looking at the issue and then propose Teubner's Reflexive Law approach as the way forward.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896509
Your lens is what Teubner calls "Formal Law" and thus the simple question you ask is "which jurisdiction is the best?" And thus your simple conclusion is that US (California) is the best jurisdiction for the five points listed by you. All five points unarguably correct.
The first alternative lens is "Substantive Law" and the question you would ask is purposive substantively - "what are the characteristics of the ideal jurisdiction and can we get the US/alternate/international jurisdiction to embrace those ideal characteristics?" This is what Parminder appears to be arguing for. Unfortunately this too is shallow and would fall victim to the black swan scenario since most of our arguments are based on inductive reasoning arising from historical observations.
https://en.wikipedia.org/wiki/Black_swan_theory
The second alternative lens is "Reflexive Law" and that is the approach I suggest as the way forward.
In the reflexive approach, you would ask "what are the institutional mechanisms or procedures to ensure that jurisdiction issue can be addressed in an adverse situation where the US jurisdiction is longer tenable, however rare it may it?" In the absolute rarest of rare cases that the US legislature or judiciary try to interfere with community decisions (the black swan scenario), how would ICANN ensure that this interference is contained/minimised? What are the institutional mechanisms or procedures for addressing the situation where the US (or any other) jurisdiction is no longer hospitable/ideal for the ICANN policymaking or IANA functions? These are the questions that we should be asking in the WS2 on jurisdiction.
Thus the focus needs to be on building a procedure/institutional mechanism for addressing adverse situations that can continuously self-correct the community to the right path rather than presuming that there is one perfect/ideal/best jurisdiction or scenario where no black swans exist.
There are numerous Reflexive Law strategies.
1) The first simple strategy is an information strategy wherein ICANN must publicly disclose any correspondence between US entities (executive, judicial or legislative) and ICANN.
2) The second strategy could be procedural. An objective index could be created that publicly marks the level of interference by US entities (executive, judicial or legislative). Once the threshold is crossed on that index, a process to change jurisdiction (perhaps the separation process) is initiated.
3) The third strategy could be to build redundancy. In this, there exists a duplicate PTI in an alternate jurisdiction that performs all IANA functions redundantly in parallel and is made authoritative in the rare scenario that the US jurisdiction can not be trusted.
While the list is illustrative, I hope it helps frame the debate better than the simple question of "which jurisdiction is best".
On Mon, Jun 20, 2016 at 7:29 PM, Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> wrote:
Well, yes. But. We wanted (legal) enforceability, and got it. And the .africa outcome illustrates (apart from the neo-colonalization perspective) that <rule of law> and <justice> do not guarantee the <right> outcome of such a process
Roelof
On 19-06-16 12:54, "accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>
on behalf of nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
Welcome to the world of competing interests, advanced to the maxiumn by all lawful means.
This is why we need strong accountability, and respect for human rights, embedded in ICANN's culture, rather than imposed from the outside by a review tribunal.
On 19/06/16 10:55, Tijani BEN JEMAA wrote:
Jordan and all,
You are right that the ICANN accountability is an essential thing, and that all concerned parties should have the opportunity to challenge ICANN for any violation of its bylaws and articles.
But in this case of dot africa, the issue is too obvious that dotconnectafrica can¹t get the support of the African community including Governments. they have at the contrary strong opposition of some of them. And the applicant guide book is too clear on this point: any Geographic application should gain, inter alias, the explicit support of the government(s).
All the steps for a positive end of the application of ZACR (officially tasked by the African Union to apply for dot africa on their behalf) were accomplished and the decision of the ICANN was justified.
dotconnectafrica argued through the IRP that ICANN wasn¹t fair in its decision. The IRP process took too longtime because one of the panel members passed away. There wasn¹t a maximum time for the IRP consideration, and that is one of the issues we must tackle in the IRP sub-group about IRP. After the late replacement of the dead member of the panel, everything was to be restarted. this longtime gives rooms for every possible gaming. dont forget that dotconnectafrica has paid a huge amont of money in advertising, communication and sponsoring prior to the opening of the new gTLD round. the result of the IRP for them is vital.
ICANN applied the decision of the IRP and dotconnectafrica lost the geographic panel evaluation. Now, they went to the court to delay more and more the delegation of dot africa.
In the mean time, the Africans are prevented from having their continental TLD because this game is continuing even if the case is too clear. Where is the public interest here? where is the interest of Africa? As African, I¹m too disappointed because we are the hostage of a system that privilege the private interest over the African community one.
------------------------------------------------------------------------- ---- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114
------------------------------------------------------------------------- ----
Le 19 juin 2016 à 08:11, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> <mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>>> a écrit :
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" <<mailto:parminder@itforchange.net <mailto:parminder@itforchange.net>>parminder@itforchange.net <mailto: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 <<mailto:parminder@itforchange.net
<mailto:parminder@itforchange.net>>parminder@itforchange.net <mailto: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-lawyer >s-california-are-denying-africans-their-own-domain-scramble?frsc=dg%7 >Cd>http://www.economist.com/news/middle-east-and-africa/21700661-lawy >ers-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 > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> ><mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > >https://mm.icann.org/mailman/listinfo/accountability-cross-community
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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? 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. 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. 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. 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. My own views on this subject are quite clear – see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: * ICANN has embodied California non-profit status since its founding in 1998 * With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control * The accountability plan has been designed to be maximally effective in the context of California law * The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law * Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey 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<mailto: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<mailto: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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649<tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. 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Phil - Well said, and I wholeheartedly agree with your assessment. Thanks— J. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Sunday, June 19, 2016 at 10:47 To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa 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? 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. 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. 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. 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. My own views on this subject are quite clear – see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: * ICANN has embodied California non-profit status since its founding in 1998 * With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control * The accountability plan has been designed to be maximally effective in the context of California law * The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law * Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto: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<mailto: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<mailto: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<mailto: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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649<tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16
Phil, I also wholeheartedly agree. However is there not a strong case for ICANN's new CEO to start the process of breaking up ICANN into two separate legal entities, with the creation of a new for profit corporation. It doesn't necessarily have to be incorporated in California. This would replace the GDD - to properly manage the closure of the (imploding) Round 1 gTLD programme as soon as possible, more effectively manage the $Ms of revenues generated and received in the coming years, as well as $100M auction proceeds, from the new gTLD Registries and Registrars, that will at least go some way to paying for the huge costs ( already over budget) of the WS2 implementation and the inevitable WS3. Regards, Phil From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James M. Bladel Sent: Sunday, June 19, 2016 4:54 PM To: Phil Corwin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Phil - Well said, and I wholeheartedly agree with your assessment. Thanks- J. From: <accountability-cross-community-bounces@icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com> Date: Sunday, June 19, 2016 at 10:47 To: parminder <parminder@itforchange.net>, Seun Ojedeji <seun.ojedeji@gmail.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa 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? 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. 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. 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. 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. My own views on this subject are quite clear - 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: ? ICANN has embodied California non-profit status since its founding in 1998 ? With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control ? The accountability plan has been designed to be maximally effective in the context of California law ? The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law ? Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey 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-califo rnia-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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649 <tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _____ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16
Phil: I don't know that there is a "strong case" for spinning off the GDD as a new for-profit corporation, as this is the first time that I have seen such a proposal broached. If there is a case to be made then we should be open to looking at it, but two immediate questions/concerns leap to mind. The first is what influence, if any, the EC would have over this new for-profit, and to what extent the GNSO would have any role in setting its gTLD policies. The second is whether this would not further complicate the soon to arrive structure of three separate interacting CA non-profits - ICANN itself plus the PTI and EC - and what the relationship of this new entity would be with ICANN. I'm also concerned that undesirable instability and uncertainty will result if we keep creating (after thousands of collective hours of additional work) new structural/jurisdictional changes before we have learned to live with the post-transition ICANN setup we have just created. Let's fly the airplane we've just built before we add more wings or engines. But if you believe there is a case to be made where the positives outweigh the negatives, let's hear it. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Phil Buckingham [mailto:phil@dotadvice.co.uk] Sent: Sunday, June 19, 2016 1:45 PM To: 'James M. Bladel'; Phil Corwin Cc: accountability-cross-community@icann.org Subject: RE: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Phil, I also wholeheartedly agree. However is there not a strong case for ICANN's new CEO to start the process of breaking up ICANN into two separate legal entities, with the creation of a new for profit corporation. It doesn't necessarily have to be incorporated in California. This would replace the GDD - to properly manage the closure of the (imploding) Round 1 gTLD programme as soon as possible, more effectively manage the $Ms of revenues generated and received in the coming years, as well as $100M auction proceeds, from the new gTLD Registries and Registrars, that will at least go some way to paying for the huge costs ( already over budget) of the WS2 implementation and the inevitable WS3. Regards, Phil From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James M. Bladel Sent: Sunday, June 19, 2016 4:54 PM To: Phil Corwin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for ..africa Phil - Well said, and I wholeheartedly agree with your assessment. Thanks- J. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Date: Sunday, June 19, 2016 at 10:47 To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for ..africa 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? 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. 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. 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. 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. My own views on this subject are quite clear - see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: ? ICANN has embodied California non-profit status since its founding in 1998 ? With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control ? The accountability plan has been designed to be maximally effective in the context of California law ? The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law ? Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto: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<mailto: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<mailto: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<mailto: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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649<tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16
For Profit? What Cheese Sandwich is this guy on? el -- Sent from Dr Lisse's iPad mini 4
On 19 Jun 2016, at 18:45, Phil Buckingham <phil@dotadvice.co.uk> wrote:
Phil,
I also wholeheartedly agree.
However is there not a strong case for ICANN‘s new CEO to start the process of breaking up ICANN into two separate legal entities, with the creation of a new for profit corporation. It doesn’t necessarily have to be incorporated in California.
This would replace the GDD - to properly manage the closure of the (imploding) Round 1 gTLD programme as soon as possible, more effectively manage the $Ms of revenues generated and received in the coming years, as well as $100M auction proceeds, from the new gTLD Registries and Registrars, that will at least go some way to paying for the huge costs ( already over budget) of the WS2 implementation and the inevitable WS3.
Regards,
Phil
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of James M. Bladel Sent: Sunday, June 19, 2016 4:54 PM To: Phil Corwin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
Phil -
Well said, and I wholeheartedly agree with your assessment.
Thanks—
J.
From: <accountability-cross-community-bounces@icann.org> on behalf of Phil Corwin <psc@vlaw-dc.com> Date: Sunday, June 19, 2016 at 10:47 To: parminder <parminder@itforchange.net>, Seun Ojedeji <seun.ojedeji@gmail.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa
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?
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.
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.
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.
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.
My own views on this subject are quite clear – see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: ? ICANN has embodied California non-profit status since its founding in 1998 ? With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control ? The accountability plan has been designed to be maximally effective in the context of California law ? The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law ? Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech.
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
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
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-califo...
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Wellington, New Zealand
+64 21 442 649 jordan@jordancarter.org.nz
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Phil, Completely agree and let me thank you personally for your post. With seven law degrees / diplomas from five universities in three countries on two continents I was getting a bit nervous that I had wasted all my time and money getting those pieces of educational paper. All that education and I never came across this concept of "international jurisdiction". Thanks for stating the jurisdictional basis of law that I've been taught in your usual eloquent way. Happy to learn all those universities hadn't ignored in their teaching what possibly would be the mother of all jurisdictions - if it ever existed, which it does not. Shame though. Our job would be a lot easier if such a fantasy were legal reality. Thanks, Ed ---------------------------------------- From: "Phil Corwin" <psc@vlaw-dc.com> Sent: Sunday, June 19, 2016 4:50 PM To: "parminder" <parminder@itforchange.net>, "Seun Ojedeji" <seun.ojedeji@gmail.com> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa 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? 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. 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. 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. 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. My own views on this subject are quite clear - see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: ICANN has embodied California non-profit status since its founding in 1998 With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control The accountability plan has been designed to be maximally effective in the context of California law The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey 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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649 jordan@jordancarter.org.nz _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ---------------------------------------- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16
Thanks Ed, and also James, for your supportive input. (Though, Ed, I have no idea how you stood attending five different law schools - one was more than enough for me ;-) Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Edward Morris [mailto:egmorris1@toast.net] Sent: Sunday, June 19, 2016 12:41 PM To: parminder; Seun Ojedeji; Phil Corwin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Phil, Completely agree and let me thank you personally for your post. With seven law degrees / diplomas from five universities in three countries on two continents I was getting a bit nervous that I had wasted all my time and money getting those pieces of educational paper. All that education and I never came across this concept of "international jurisdiction". Thanks for stating the jurisdictional basis of law that I've been taught in your usual eloquent way. Happy to learn all those universities hadn't ignored in their teaching what possibly would be the mother of all jurisdictions - if it ever existed, which it does not. Shame though. Our job would be a lot easier if such a fantasy were legal reality. Thanks, Ed ________________________________ From: "Phil Corwin" <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Sent: Sunday, June 19, 2016 4:50 PM To: "parminder" <parminder@itforchange.net<mailto:parminder@itforchange.net>>, "Seun Ojedeji" <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa 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? 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. 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. 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. 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. My own views on this subject are quite clear - see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: * ICANN has embodied California non-profit status since its founding in 1998 * With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control * The accountability plan has been designed to be maximally effective in the context of California law * The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law * Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto: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<mailto: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<mailto: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<mailto: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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649<tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16 ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16
Hey, I see that WS2 jurisdiction track is open! It's going to be a fun one! From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Sunday, June 19, 2016 12:41 PM To: parminder <parminder@itforchange.net>; Seun Ojedeji <seun.ojedeji@gmail.com>; Phil Corwin <psc@vlaw-dc.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Phil, Completely agree and let me thank you personally for your post. With seven law degrees / diplomas from five universities in three countries on two continents I was getting a bit nervous that I had wasted all my time and money getting those pieces of educational paper. All that education and I never came across this concept of "international jurisdiction". Thanks for stating the jurisdictional basis of law that I've been taught in your usual eloquent way. Happy to learn all those universities hadn't ignored in their teaching what possibly would be the mother of all jurisdictions - if it ever existed, which it does not. Shame though. Our job would be a lot easier if such a fantasy were legal reality. Thanks, Ed ________________________________ From: "Phil Corwin" <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Sent: Sunday, June 19, 2016 4:50 PM To: "parminder" <parminder@itforchange.net<mailto:parminder@itforchange.net>>, "Seun Ojedeji" <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa 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? 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. 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. 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. 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. My own views on this subject are quite clear - see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: * ICANN has embodied California non-profit status since its founding in 1998 * With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control * The accountability plan has been designed to be maximally effective in the context of California law * The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law * Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto: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<mailto: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<mailto: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<mailto: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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649<tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4604/12441 - Release Date: 06/17/16
Depends on your idea of "fun".
From my perspective, the whole process is an unnecessary irritation that should have been settled with finality in WS1.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Sunday, June 19, 2016 5:54 PM To: egmorris1@toast.net; parminder; Seun Ojedeji; Phil Corwin Cc: accountability-cross-community@icann.org Subject: RE: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Hey, I see that WS2 jurisdiction track is open! It's going to be a fun one! From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Sunday, June 19, 2016 12:41 PM To: parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>; Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa Phil, Completely agree and let me thank you personally for your post. With seven law degrees / diplomas from five universities in three countries on two continents I was getting a bit nervous that I had wasted all my time and money getting those pieces of educational paper. All that education and I never came across this concept of "international jurisdiction". Thanks for stating the jurisdictional basis of law that I've been taught in your usual eloquent way. Happy to learn all those universities hadn't ignored in their teaching what possibly would be the mother of all jurisdictions - if it ever existed, which it does not. Shame though. Our job would be a lot easier if such a fantasy were legal reality. Thanks, Ed ________________________________ From: "Phil Corwin" <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> Sent: Sunday, June 19, 2016 4:50 PM To: "parminder" <parminder@itforchange.net<mailto:parminder@itforchange.net>>, "Seun Ojedeji" <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The Economist | A virtual turf war: The scramble for .africa 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? 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. 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. 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. 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. My own views on this subject are quite clear - see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... : 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: * ICANN has embodied California non-profit status since its founding in 1998 * With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control * The accountability plan has been designed to be maximally effective in the context of California law * The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law * Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech. 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 Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto: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<mailto: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<mailto: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<mailto: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-califo... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Wellington, New Zealand +64 21 442 649<tel:%2B64%2021%20442%20649> jordan@jordancarter.org.nz<mailto:jordan@jordancarter.org.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. 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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_... :
/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:/
* /ICANN has embodied California non-profit status since its founding in 1998/ * /With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control/ * /The accountability plan has been designed to be maximally effective in the context of California law/ * /The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law/ * /Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech./
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
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
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* *
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*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 <mailto: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 <mailto: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-califo...
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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--
Jordan Carter
Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649>
jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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On Sunday 19 June 2016 09:17 PM, Phil Corwin wrote:
snip
My own views on this subject are quite clear – see http://www.circleid.com/posts/20160523_the_irritating_irresolution_of_icann_... :
Phil, I now have some time to respond to your below points as well.
/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:/
* /ICANN has embodied California non-profit status since its founding in 1998/ * /With the EC and PTI required to be California non-profits by revised Fundamental Bylaws, an inconsistent status for ICANN itself could raise confounding legal and policy issues for both accountability and control/
/When we are talking about changing the very incorporation of ICANN, changing its fundamental bylaws is a rather small matter in comparison. //A ICANN under a new jurisdiction is legally a new body, although it could carry along all the baggage - good and bad - that it "wants" to carry from the earlier avataar, to maintain the obviously needed continuity. But then changing fundamental bylaws in such a context is not such a big problem. /
* // * /The accountability plan has been designed to be maximally effective in the context of California law/
/Well, in that case ( also following from your above point), are you saying that the claim by those conducting the transition process that the jurisdiction question is still open is basically a bluff? Anyway, we have the essential design of the accountability plan and it can be made to work in any new jurisdiction as easily, especially an international one which will be based on newly created and tailor-made international law which can incorporate this plan. /
* // * /The U.S. legal system is well regarded for its dedication to objective determinations under the rule of law/
/Actually, I like the Indian legal system :). (It for instance does not think corporates have human rights on par with natural persons :). I am referring to the Citizens United case.). the 'law' under which the US legal system makes objective determinations is the US law, which is different from, say, the Indian law. The outcome of objective determinations will differ according to which law is employed. That is the point. I would much like my claims with regard to the global DNS to be adjudicated under a law in which I have some kind of role in making, and consider legitimate to apply to me - so I think would be for all non US people. That would either be one's own country law or international law. /
* // * /Perhaps most importantly, the First Amendment of the U.S. Constitution guarantees that the U.S. government cannot take actions that would coerce ICANN into using its root zone control to abridge free speech./
You are disregarding the number of websites seized under various pretexts by US gov, by ordering the concerned registries. (And the drastic though indirect steps taken to close down wikileaks.) If now it is a gTLD - with thousands of them granted - that falls foul of the same US authorities for a similar cause, no registry can help, and so the same order will go to ICANN to remove the offending gTLD. (Can you refute this line of argument? ) It is simply the US law, that MUST be enforced, multistakeholderist niceties aside. Therefore, excuse my words, but such statements as you make about the superiority of US law are mere propaganda that no one outside the US takes seriously. Though you are allowed your patriotism :). parminder
* //
snip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell***
* *
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*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 <mailto: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 <mailto: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-califo...
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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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--
Jordan Carter
Wellington, New Zealand
+64 21 442 649 <tel:%2B64%2021%20442%20649>
jordan@jordancarter.org.nz <mailto:jordan@jordancarter.org.nz>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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participants (15)
-
Adebunmi AKINBO -
Alberto Soto -
Dr Eberhard W Lisse -
Edward Morris -
Guru Acharya -
James M. Bladel -
Mueller, Milton L -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Phil Buckingham -
Phil Corwin -
Roelof Meijer -
Seun Ojedeji -
Tijani BEN JEMAA