On Thu, Mar 24, 2016 at 7:39 AM, parminder <parminder@itforchange.net> wrote:

On Thursday 24 March 2016 10:56 AM, Seun Ojedeji wrote:

"...What ICANN needs, therefore, apart from coming under international jurisdiction, is some kind of external oversight, which, however, need not be of governments..."

What does international jurisdiction mean

It means incorporation under international law, and not US law as present.

Okay don't mind my legal illiteracy, does this mean incoporation under a body like UN? how does/will this work in a normal circumstances; How does the registration of a company name work when a country is not the source of registration?

and what does external oversight

It means, oversight by a body/system which is substantially different from where key executive powers reside, and if differently constituted as to not have a possible close matching of narrow interests.

Okay so you are referring to a separate body that does what NTIA currently does? If i may ask, why do you really think you could trust this new body that will oversight on ICANN; who will oversight this new body you propose?

mean in practice as I understand that the ICANN board represents both external and internal in terms of its composition.

No offence, but I have no idea what this sentence means.

The board has oversight on the organization. Seats on the board is filled by various SO/AC and also by external people who are not affiliated with various SO/AC(nomcom selected members). So my point was that there is already some level of external oversight by the virtue of board's composition.

My article is quite specific, for the 1400 words that I had.... In fact it is your response to it that requires specifics, and seems to be too vague. What exactly 'representing both internal and external' and 'community' mean?

I hope my responses above now helps Regards

Best, parminder

Cheers!

Sent from my LG G4 Kindly excuse brevity and typos On 24 Mar 2016 06:18, "parminder" < <parminder@itforchange.net> parminder@itforchange.net> wrote:

...

My take on the ICANN oversight transition as an op-ed in The Hindu

'Why the Internet is not just free yet"

http://www.thehindu.com/opinion/op-ed/why-the-internet-isnt-just-free-yet/ar...

parminder

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org

-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!

On Thu, Mar 24, 2016 at 10:59 AM, parminder <parminder@itforchange.net> wrote:

Seun, responses inline

On Thursday 24 March 2016 02:53 PM, Seun Ojedeji wrote:

snip,,,,,,It means incorporation under international law, and not US law as present.

Okay don't mind my legal illiteracy, does this mean incoporation under a body like UN? how does/will this work in a normal circumstances; How does the registration of a company name work when a country is not the source of registration?

International incorporation either follows a new treaty, or can be under the UN....

This is where i will rest my case on this topic; haven seen how "ironically" effective and INCLUSIVE things setup within UN are(IGF, ITU et all), what you are proposing in not the future i want to imagine nor experience for ICANN. Regards

Regards

...

Best, parminder

Cheers!

Sent from my LG G4 Kindly excuse brevity and typos On 24 Mar 2016 06:18, "parminder" <parminder@itforchange.net> wrote:

...

My take on the ICANN oversight transition as an op-ed in The Hindu

'Why the Internet is not just free yet"

http://www.thehindu.com/opinion/op-ed/why-the-internet-isnt-just-free-yet/ar...

parminder

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: <http://atlarge.icann.org> http://atlarge.icann.org

-- ------------------------------------------------------------------------

*Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535 **alt email: <http://goog_1872880453> <seun.ojedeji@fuoye.edu.ng>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*

Bringing another down does not take you up - think about your action!

-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!

...

International incorporation either follows a new treaty, or can be under the UN....

This is where i will rest my case on this topic; ...

Indeed. If we want the ITU, we know where to find it. R's, John

Parminder's article in The Hindu, a worthwhile, short read. http://www.thehindu.com/opinion/op-ed/why-the-internet-isnt-just-free-yet/ar... or http://tinyurl.com/hbot84g -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

On Saturday 26 March 2016 09:43 PM, Roberto Gaetano wrote:

...

Il giorno 24.03.2016, alle ore 10:00, parminder <parminder@itforchange.net> ha scritto:

International incorporation either follows a new treaty, or can be under the UN.... Correct. And I do believe that either case is far from simple.

No one says we are dealing with simple things here. They are very complex, certainly.

Just stating the principle is "ether" - unless it is vested with a practical proposal. I am happy to give practical proposals, as I have often done, as long as you promise to tell me what if anything is wrong in it, and the response does not disappear into the ether :)

I'll try to be brief... Unlike what you say below, and John was arguing, there is no proposal from my side for any other agency to replace ICANN's current working. It is supposed to be preserved as it it. I am not sure why I am unable to make this clear despite stating it repeatedly. The proposal is just to have immunity from currently applicable US jurisdiction - executive, legislative and judicial - over ICANN, which does not change with oversight transition process, and which is very dangerous and unacceptable to non US people. Such immunity requires international incorporation of the ICANN, with the incorporating document clearly, legally, preserving, ICANN's current mandate and working.... This incorporating document can be in form of a very brief treaty, laying our and legitimising (in international law) the mandate and work methods of ICANN (as they are) and further granting immunity from host country jurisdictions. The text of such a short treaty document will require to be such that US would accede to, and it can make sure that ICANN's status quo is protected... There will be no way to change that status quo - believe me, there is a rule of law in the international domain - unless US (and its allies) agrees to such a change. And there is no reason that it will. Such an arrangement protects the ICANN's global governance role both from US's unilateral interference (from which it is not protected right now) and of any other country, including, the very unlikely chance of all non US countries ganging up because still US will have to agree to any change..... Now please tell me why and how this arrangement is not a better protection from any undue interference with ICANN's mandate and working than the current arrangement whereby (even post transition) US's judicial, legislative and executive agencies can any time interfere with ICANN's working? No solution will be perfect, but trade offs between different kinds have to be assessed, form the point of view of people worldwide, and not just of the US and its allies. My article also gave a clear example.... Say, the US pharma industry brings up a case against an Indian generic drug manufacturer, Sun Pharma, with the gTLD .SuPha, in a US court alleging that the latter is compromising its patents in its global generic drug business, a case which otherwise done not hold either in an Indian court or of those countries to which SunPharma sells its drugs, and the US court orders seizure of all US based assets of SunPharma including its gTLD. Accordingly, the US court orders ICANN to de-notify .SuPha and the root server maintainer to remove it from the root file. This is an extremely likely scenario... I can give a thousand similar examples of various issues that US gov and US business can have with many entities of other countries, whereby similar consequences can follow. Is this fair...? Is such a non democratic system acceptable in this world in the 21st century? Why should non US actors, people and countries accept such a system? Do you have any preparation of defence against these very likely, in fact inevitable scenarios (esp with new gTLDs) ? In the circumstance, how is an international incorporation for ICANN with host country immunities not better? parminder

1. Under the UN OK. Where exactly? Which already existing UN organization will extend its current mandate to cover the assignment of Internet domain names, IP addresses and protocol parameters? Hint: in the past the ITU had thought to be taking this task, but then its governing body (the Member States) have abandoned the idea. These days countries are very sensitive to money matters. Extend the mandate of an UN organization will mean more funding - and you bet their respective governing bodies (General Assembly or General Conference of the Member States) will say "no". But you are welcome to launch a proposal and try - but it is not the ICANN community that you need to address, but Member States of an existing UN organization. Otherwise, it is "ether".

2. New Treaty OK. What would be the articles? Would it be different from the ICANN Bylaws, and if so what would be the role of the community to endors the change? No "ether" please, just sentences black on white. How would you convince the potential signatories (that I would assume would be the member states)? This is a far from trivial task. As I have pointed out in a previous message, the CTBTO is still dormant after more than a decade because the number of countries needed to sign in order to bring the protocol in force has not been reached yet. And we are talking about something sensitive like the ban of nuclear tests, on which the vast majority of the population agrees. Just as a side note, another very critical international treaty is the nuclear non-proliferation treaty. Everybody agrees about non-proliferation of nuclear weapons, right? It is a matter of the paramount importance for the survival of the humanity, right? However, some countries did not sign, and are therefore not under the obligation to comply with the treaty. In short, they are free to manufacture nuclear weapons outside any international control. Incidentally, India is one of those countries, who have not signed the treaty. Wonder why? Still thinking that this is an easy task? Go ahead, and please tell my grand-children when this materializes in something different than blah-blah, or "ether" as you call it.

Cheers, and good luck. Roberto

On Sunday 27 March 2016 04:57 PM, Roberto Gaetano wrote:

Parminder, I think that we have a communication problem. I have perfectly understood that you do not want to create a new structure to do what ICANN is doing, you "only" propose to incorporate ICANN in a way that it takes the shape of an international treaty organization - either an already existing one or a brand new one. And this incorporation process is what I am asking you to describe.

Thanks Roberto, that makes it easier for us to move forward.

You might be surprised to learn that, in theory, I would surely prefer international incorporation of ICANN rather than US incorporation.

That is great. Can we all agree on this and incorporate it in a value statement. Things move forward like that. Public interest or civil society groups - of which I take ALAC to be a site - first agree on such value statements. Once such a normative standard is agreed to, it is never impossible to find the best fit institutional form (knowing that no solution can be perfect and it can only be better than the others available - like a US incorporation of ICANN, for in this case - for the required and given considerations.)

However, it is the practical implementation of an international incorporation of ICANN that preserves the current multi-stakeholder model that I believe is unfeasible. I described a process whereby international incorporation will preserve the current multistakeholder model, by this model being inscribed centrally in the very text of a new (brief) treaty. And the US, and other multistakeholder (MS) model supporting governments, make it a basic condition for agreeing to the treaty. And since such a treaty can be overruled or its text changed only with consent of US and other MS model supporters, it can never happen. This way, what you agree as a theoretical preference, and thus I think you consider as normatively much more desirable, can be practically achieved. You have not pointed to any defect in my proposal. But in doing so please remember that we can not just go by past experience and we should use all possibilities of innovative available to us, within practical possibilities. And also nothing is ever perfect and evaluation should be relative .

And my question is how do you see this international incorporation happening (ByLaws, separation of powers, etc.).

I have mentioned the basic elements above. A simpler option is to do incorporation with no external oversight, and only internal oversight as proposed in the final ICANN accountability proposal now. (I myself in fact prefer an added external oversight, which proposal I will keep separate for now not to confuse the international incorporation discussion here. But as my article says, this proposed external oversight is not to be of governments. If you or others have interest, I can also share that part separately. But for discussing international incorporation just forget that part. We go by the currently proposed internal oversight model and inscribe it in the proposed treaty. )

In simple words, it is pointless to continuing describing the ethereal wonders that this future arrangement will bring:

Nothing ethereal in the above above. But of course you have to be looking froward. We have, for instance, been thinking for years how we will convince countries - all of which are interested in faster economic growth - to agree to begin reducing emission rates... But the Paris agreement did make some progress on this. Same thing can be said of nuclear armament, human rights compliance, SDG goals, and so many other things. There are forces of global public governance and consensus making always at work, they work slowly and one must believe in them. And different actors have different roles in the process. The role of concerned public interest and civil society groups - what I characterise ALAC to be - is to be driven by higher values and public interest, be forward looking, and pro-actively contribute normative and practical proposals and texts, like for a possible treaty of the kind I have mentioned.

I want to know how you would do it in practice, for instance how you convince member states to create an oversight structure that remains an oversight structure and leaves the policy making process as is. Having followed this issue since the WSIS, I think most member states, other than the US, are convinced, and would agree within months. The US will get convinced as it did get convinced to go for the current oversight transition, after Snowden disclosures, from the pressure of public opinion - an all important force we normally ignore in our analyses. But for this pressure to form and build up, public interest and civil society groups have a big role. But if they just give up any forward looking proposal as being too difficult, no progress will ever get made... This is why I appeal to groups like the ALAC and other IG public interest/ civil society groups to take the initiative in this regard. Such initiative should always come from these quarters, governments are too busy with the here and now to do it.

parminder

Cheers, R.

...

-----Messaggio originale----- Da: parminder [mailto:parminder@itforchange.net] Inviato: domenica 27 marzo 2016 08:30 A: Roberto Gaetano Cc: Seun Ojedeji; At-Large Worldwide Oggetto: Re: [At-Large] Is ICANN's oversight really moving away from the US government?

On Saturday 26 March 2016 09:43 PM, Roberto Gaetano wrote:

...

...

Il giorno 24.03.2016, alle ore 10:00, parminder <parminder@itforchange.net> ha scritto: International incorporation either follows a new treaty, or can be under the UN.... Correct. And I do believe that either case is far from simple. No one says we are dealing with simple things here. They are very complex, certainly. Just stating the principle is "ether" - unless it is vested with a practical proposal. I am happy to give practical proposals, as I have often done, as long as you promise to tell me what if anything is wrong in it, and the response does not disappear into the ether :)

I'll try to be brief... Unlike what you say below, and John was arguing, there is no proposal from my side for any other agency to replace ICANN's current working. It is supposed to be preserved as it it. I am not sure why I am unable to make this clear despite stating it repeatedly. The proposal is just to have immunity from currently applicable US jurisdiction - executive, legislative and judicial - over ICANN, which does not change with oversight transition process, and which is very dangerous and unacceptable to non US people. Such immunity requires international incorporation of the ICANN, with the incorporating document clearly, legally, preserving, ICANN's current mandate and working.... This incorporating document can be in form of a very brief treaty, laying our and legitimising (in international law) the mandate and work methods of ICANN (as they are) and further granting immunity from host country jurisdictions.

The text of such a short treaty document will require to be such that US would accede to, and it can make sure that ICANN's status quo is protected... There will be no way to change that status quo - believe me, there is a rule of law in the international domain - unless US (and its allies) agrees to such a change. And there is no reason that it will. Such an arrangement protects the ICANN's global governance role both from US's unilateral interference (from which it is not protected right now) and of any other country, including, the very unlikely chance of all non US countries ganging up because still US will have to agree to any change..... Now please tell me why and how this arrangement is not a better protection from any undue interference with ICANN's mandate and working than the current arrangement whereby (even post transition) US's judicial, legislative and executive agencies can any time interfere with ICANN's working? No solution will be perfect, but trade offs between different kinds have to be assessed, form the point of view of people worldwide, and not just of the US and its allies.

My article also gave a clear example.... Say, the US pharma industry brings up a case against an Indian generic drug manufacturer, Sun Pharma, with the gTLD .SuPha, in a US court alleging that the latter is compromising its patents in its global generic drug business, a case which otherwise done not hold either in an Indian court or of those countries to which SunPharma sells its drugs, and the US court orders seizure of all US based assets of SunPharma including its gTLD. Accordingly, the US court orders ICANN to de-notify .SuPha and the root server maintainer to remove it from the root file. This is an extremely likely scenario... I can give a thousand similar examples of various issues that US gov and US business can have with many entities of other countries, whereby similar consequences can follow. Is this fair...? Is such a non democratic system acceptable in this world in the 21st century? Why should non US actors, people and countries accept such a system? Do you have any preparation of defence against these very likely, in fact inevitable scenarios (esp with new gTLDs) ?

In the circumstance, how is an international incorporation for ICANN with host country immunities not better?

parminder

...

1. Under the UN OK. Where exactly? Which already existing UN organization will extend its current mandate to cover the assignment of Internet domain names, IP addresses and protocol parameters? Hint: in the past the ITU had thought to be taking this task, but then its governing body (the Member States) have abandoned the idea. These days countries are very sensitive to money matters. Extend the mandate of an UN organization will mean more funding - and you bet their respective governing bodies (General Assembly or General Conference of the Member States) will say "no". But you are welcome to launch a proposal and try - but it is not the ICANN community that you need to address, but Member States of an existing UN organization. Otherwise, it is "ether".

2. New Treaty OK. What would be the articles? Would it be different from the ICANN Bylaws, and if so what would be the role of the community to endors the change? No "ether" please, just sentences black on white. How would you convince the potential signatories (that I would assume would be the member states)? This is a far from trivial task. As I have pointed out in a previous message, the CTBTO is still dormant after more than a decade because the number of countries needed to sign in order to bring the protocol in force has not been reached yet. And we are talking about something sensitive like the ban of nuclear tests, on which the vast majority of the population agrees. Just as a side note, another very critical international treaty is the nuclear non-proliferation treaty. Everybody agrees about non-proliferation of nuclear weapons, right? It is a matter of the paramount importance for the survival of the humanity, right? However, some countries did not sign, and are therefore not under the obligation to comply with the treaty. In short, they are free to manufacture nuclear weapons outside any international control. Incidentally, India is one of those countries, who have not signed the treaty. Wonder why? Still thinking that this is an easy task? Go ahead, and please tell my grand-children when this materializes in something different than blah-blah, or "ether" as you call it. Cheers, and good luck. Roberto

Sent from my LG G4 Kindly excuse brevity and typos On 27 Mar 2016 3:04 p.m., "Roberto Gaetano" <roberto_gaetano@hotmail.com> wrote:

Personally, I would not agree to any blank statement of principle without concrete answers to the questions above. In absence of this, I remain with my position, which is that international incorporation of ICANN, that preserves the current multi-stakeholder

model,

could be desirable in theory but is unfeasible in practice.

Cheers, Roberto

...

-----Messaggio originale----- Da: parminder [mailto:parminder@itforchange.net] Inviato: domenica 27 marzo 2016 14:51 A: Roberto Gaetano Cc: 'Seun Ojedeji'; 'At-Large Worldwide' Oggetto: Re: R: [At-Large] Is ICANN's oversight really moving away from the US government?

On Sunday 27 March 2016 04:57 PM, Roberto Gaetano wrote:

...

Parminder, I think that we have a communication problem. I have perfectly understood that you do not want to create a new structure to do what ICANN is doing, you "only" propose to incorporate ICANN in a way that it takes the shape of an international treaty organization - either an already existing one or a brand new one. And this incorporation process is what I am asking you to describe.

Thanks Roberto, that makes it easier for us to move forward.

...

You might be surprised to learn that, in theory, I would surely prefer international incorporation of ICANN rather than US incorporation.

That is great. Can we all agree on this and incorporate it in a value statement. Things move forward like that. Public interest or civil society groups

SO: There are more that share that personal view as well. +1~ Leaving the international incorporation thing aside, it should be noted that a form of external oversight was indeed postulated during the CWG proposal development and those who participated then would acknowledge that the anxiety(of a few) to see that happen dwindled down once we got into details and practical application/implications of such theory (in the current world we live in) Cheers! -

of

...

which I take ALAC to be a site - first agree on such value statements. Once such a normative standard is agreed to, it is never impossible to find the best fit institutional form (knowing that no solution can be perfect and it can only be better than the others available - like a US incorporation of ICANN, for in this case - for the required and given considerations.)

...

However, it is the practical implementation of an international incorporation of ICANN that preserves the current multi-stakeholder model that I believe is unfeasible. I described a process whereby international incorporation will preserve the current multistakeholder model, by this model being inscribed centrally in the very text of a new (brief) treaty. And the US, and other multistakeholder (MS) model supporting governments, make it a basic condition for agreeing to the treaty. And since such a treaty can be overruled or its text changed only with consent of US and other MS model supporters, it can never happen. This way, what you agree as a theoretical preference, and thus I think you consider as normatively much more desirable, can be practically achieved. You have not pointed to any defect in my proposal. But in doing so please remember that we can not just go by past experience and we should use all possibilities of innovative available to us, within practical possibilities. And also nothing is ever perfect and evaluation should be relative .

...

And my question is how do you see this international incorporation happening (ByLaws, separation of powers, etc.).

I have mentioned the basic elements above. A simpler option is to do incorporation with no external oversight, and only internal oversight as proposed in the final ICANN accountability proposal now. (I myself in fact prefer an added external oversight, which proposal I will keep separate for now not to confuse the international incorporation discussion here. But as my article says, this proposed external oversight is not to be of governments. If you or others have interest, I can also share that part separately. But for discussing international incorporation just forget that part. We go by the currently proposed internal oversight model and inscribe it in the proposed treaty. )

...

In simple words, it is pointless to continuing describing the ethereal wonders that this future arrangement will bring:

Nothing ethereal in the above above. But of course you have to be looking froward. We have, for instance, been thinking for years how we will convince countries - all of which are interested in faster economic growth - to agree to begin reducing emission rates... But the Paris agreement did make some progress on this. Same thing can be said of nuclear armament, human rights compliance, SDG goals, and so many other things. There are forces of global public governance and consensus making always at work, they work slowly and one must believe in them. And different actors have different roles in the process. The role of concerned public interest and civil society groups - what I characterise ALAC to be - is to be driven by higher values and public interest, be forward looking, and pro-actively contribute normative and practical proposals and texts, like for a possible treaty of the kind I have mentioned.

...

I want to know how you would do it in practice, for instance how you convince member states to create an oversight structure that remains an oversight structure and leaves the policy making process as is. Having followed this issue since the WSIS, I think most member states, other than the US, are convinced, and would agree within months. The US will get convinced as it did get convinced to go for the current oversight transition, after Snowden disclosures, from the pressure of public opinion - an all important force we normally ignore in our analyses. But for this pressure to form and build up, public interest and civil society groups have a big role. But if they just give up any forward looking proposal as being too difficult, no progress will ever get made... This is why I appeal to groups like the ALAC and other IG public interest/ civil society groups to take the initiative in this regard. Such initiative should always come from these quarters, governments are too busy with the here and now to do it.

parminder

...

Cheers, R.

...

-----Messaggio originale----- Da: parminder [mailto:parminder@itforchange.net] Inviato: domenica 27 marzo 2016 08:30 A: Roberto Gaetano Cc: Seun Ojedeji; At-Large Worldwide Oggetto: Re: [At-Large] Is ICANN's oversight really moving away from the US government?

On Saturday 26 March 2016 09:43 PM, Roberto Gaetano wrote:

...

...

Il giorno 24.03.2016, alle ore 10:00, parminder <parminder@itforchange.net> ha scritto: International incorporation either follows a new treaty, or can be under the UN.... Correct. And I do believe that either case is far from simple. No one says we are dealing with simple things here. They are very complex, certainly. Just stating the principle is "ether" - unless it is vested with a practical proposal. I am happy to give practical proposals, as I have often done, as long as you promise to tell me what if anything is wrong in it, and the response does not disappear into the ether :)

I'll try to be brief... Unlike what you say below, and John was arguing, there is no proposal from my side for any other agency to replace ICANN's current working. It is supposed to be preserved as it it. I am not sure why I am unable to make this clear despite stating it repeatedly. The proposal is just to have immunity from currently applicable US jurisdiction - executive, legislative and judicial - over ICANN, which does not change with oversight transition process, and which is very dangerous and unacceptable to non US people. Such immunity requires international incorporation of the ICANN, with the incorporating document clearly, legally, preserving, ICANN's current mandate and working.... This incorporating document can be in form of a very brief treaty, laying our and legitimising (in international law) the mandate and wo

In one sentence: if a new organisation oversees ICANN, who oversees the new steward?

The ITU, of course. Or perhaps an oversight board consisting of political flacks appointed by each of the treaty signatories. I don't understand why we're wasting time with this nonsense. There is no such thing as "international incorporation" and any plausible UN or treaty alternative would give governments total control. R's, John

On March 27, 2016 at 12:53 johnl@iecc.com (John R. Levine) wrote:

I don't understand why we're wasting time with this nonsense. There is no such thing as "international incorporation" and any plausible UN or treaty alternative would give governments total control.

That was my problem. I googled "international incorporation" for a while but didn't find anything useful. I did find some attorney sites which offered "international incorporation" but they meant helping a (typically) US corporation add a new incorporation in another country such as (typically) the Cayman Islands. So that was "international incorporation" more in the sense of "international airport": More than one country of incorporation but two was sufficient to merit the term. It seems to be conflated, in this discussion, with an international treaty organization (ITO) which is well-defined. There is even an extensive list of ITOs here. https://en.wikipedia.org/wiki/List_of_intergovernmental_organizations So at least that's plausible. That the term actually exists is encouraging. Incorporation is, at least in US law, a fairly specific term. It creates a fictional legal entity with limited liability and the ability to, within broad limits, indemnify officers of the corporation and others. But they are subject to the regulations and laws of the incorporation jurisdiction, at least. And to engage in political elections without restraint but let's not go there. Looking through those organizations most though not all seem to be chartered under the UN. I couldn't find an incorporation of any of them, particularly non-UN (e.g., EiroForum), but I only looked for a few minutes and it occurred to me that someone more versed in this field could enlighten us extemporaneously in a few words so why should I even attempt to do this? All that said what model, examples would be good, might this new ICANN resemble? And, as to difficulty, having located some potential model organizations why not ask them, where founders are available, how difficult it was to create them? Put another way, why do I get the feeling too much of this discussion is being manufactured de novo as if we were writing a movie script only limited by our imagination and word juggling abilities? And if that is the case I move to include a love interest, people always like a love interest, particularly stakeholders. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

On Tue, Mar 29, 2016 at 9:26 AM, parminder <parminder@itforchange.net> wrote:

What amazes me in all the responses I am getting is that no one is either saying that the problem I have posed does not exist or it is not important to resolve, nor providing any alternative ways to resolve it.

They are just arguing with parts of my proposal, which is fine, although I think, while no doubt this is a somewhat complex solution to a complex problem, no one has been able to show why it really cant work.

To remind; the problem I had posed was about the very likely wrongful US's jurisdictional imposition on ICANN's process and vis a vis the root server maintainer. I had given a concrete example; of a US court pushing the well-known over-zealous US intellectual property law and enforcement to take away the gTLD of an Indian generic drug manufacturer even when the latter has no direct business interests or activities in the US... What is your response to such a very likely occurrence?

It is highly unlikely, the likelihood approaching zero IMHO.

Should we simply ignore it?

yes, it is safe to do so. However, you must realise that after the IANA transition is finished, there will be absolutely zero appetite inside ICANN to make major reforms. I doubt you could get that Community to even consider such a proposal.

Or, do you not think it likely, in which case lets discuss that

If we must. Let's say that your scenario comes to pass. You do realise that ICANN would use the hundreds of millions of dollars in its legal kitty to fight such a court order, right?

.... You cannot simply not respond to this key global governance problem that stares us in the face... (Apart from it, is the less likely but still to be remained prepared for possibility of the The Office of Foreign Assets Control of the US playing hanky panky with the gTLD of a country

countries don't have gTLDs.

that the US gets into serious enmity with.... every country likes to remain prepared for such an eventuality. You cannot deny them that right. )...

No one seems to want to address these key global governance problems. Do they not exist? If they do, then what is your response to and preparedness for these?

They are not key. They exist as a problem largely in your head. -- Cheers, McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel

Two observations. 1. What is to stop a non-US court from taking a similar enforcement action against a registrar within that country and seizing domains? Non-US courts have been known to take jurisdiction over business outside their countries based upon the business’s goods and services being accessible within the country through the Internet. 2. Cannot the non-US business that conducts itself legally within the laws of its country register its domains with a non-US registrar? I do not deny there is an uneven playing field because ICANN is more easily subject to US jurisdiction and law than the jurisdictions and laws of other countries, but your arguments may go too far. Seth From: at-large-bounces@atlarge-lists.icann.org [mailto:at-large-bounces@atlarge-lists.icann.org] On Behalf Of parminder Sent: Thursday, April 07, 2016 6:32 AM To: McTim Cc: At-Large Worldwide Subject: Re: [At-Large] R: R: Is ICANN's oversight really moving away from the US government? McTim / All (Sorry for the delay in the response. I was travelling.) So, you say that the problem is only in my head, and we can safely ignore all that I am proposing as a problem! Let me then produce some clear evidence of the problem, and see how you respond to it. You of course know that US authorities have been using US based registries to frequently seize domains, for all kinds of reasons. Dont tell me you dont! The first famous case was when the domain of a travel site based in an European country was seized for offering holidays in Cuba to a customer in another European country, because US entities are banned from commercial transactions with Cuba. Note that the transaction had nothing at all to do with anything US. But US authorities used the US registration of the registry to seize the website nonetheless <http://arstechnica.com/business/2008/03/us-interferes-with-travel-to-cuba/> . Next famous case was of the Spanish sports streaming website Rojadirecta <https://www.techdirt.com/articles/20110201/10252412910/homeland-security-sei...> whose legality had been tested in Spanish courts and it had been declared legal... But that mattered two hoots to US government agencies which used its US registration to seize it.... Later has been this case of a Canadian gambling site <http://blog.easydns.org/2012/02/29/verisign-seizes-com-domain-registered-via...> being seized similarly by US agencies. Earlier, wikileaks website had got seized <http://www.cnet.com/news/swiss-bank-in-wikileaks-case-abruptly-abandons-laws...> . There have been many more cases of such domain name seizures by US authorities <http://www.thedomains.com/2010/07/01/feds-seize-9-domains-for-copyright-infr...> , quite often when the focus of the concerned companies was non US. Interesting, there have been court orders which transferred control over domain names of businesses to other, US, companies <http://arstechnica.com/security/2014/06/millions-of-dymanic-dns-users-suffer...> . All such legal enforcement by US agencies ( courts as well as executive agencies) has been got done through exercise of jurisdiction over US based registries, mostly Verisign controlling .com. Lets now move on to the times of thousands of gTLDs, made possible by the new gTLDs rounds, and every big business encouraged to, at least legitimately entitled to, have its own gTLD. What if the above non US companies, or similar ones like them, now take on gTLDs of their own, which they have a right to. What is the option now for US agencies if they mean to pursue similar enforcement acts as they did earlier. And there simply is no reason why they wont. Now, get this one thing clearly - for an US agency, there is absolutely no difference at all between a Verisign controlling .com registrations or an ICANN controlling gTLDs. *They are the same for them, US registered private entities, subject fully to US jurisdiction.* When they want, US agencies (courts and executive agencies) will similarly order ICANN, like they did earlier to Verisign, to take down the 'offending' gTLDs.... The logic is clear and simple, and irrefutable. Can anyone argue why and how they would not.... And that precisely is the problem that I have been positing, taking the very likely example of an Indian generic drug company, with a gTLD, falling foul of the US pharma industry's high Intellectual property aspirations and standards (which are not global). So, in the circumstances, the option for non US businesses is one of the two 1. They keep strictly on the right side of US law, even when their business does not have anything to do with the US. This amounts to a global enforcement of one country's law and jurisdiction, covering all kinds of areas. This is highly undemocratic, and not should not be acceptable to non US entities. 2. Non US companies play safe and do not take up new gTLDs. This amounts to a virtual denial of a key DNS service to non US companies. Which should be almost equally unacceptable. What is your response to this situation... If this is not a real problem for an organisation whose main task is to provide DNS services to the world, I dont see what would be a problem for it. And if this is not an issue for ALAC to address, whose main purpose should be to the serve the interests of more the peripheral groups on DNS related issues, I dont know what would be? Since I have put forth clear evidence and propositions logically ensuing from such evidence, I will very much appreciate clear and direct responses, to the issues I raise and the 'problem' I frame. parminder On Tuesday 29 March 2016 08:53 PM, McTim wrote: On Tue, Mar 29, 2016 at 9:26 AM, parminder <parminder@itforchange.net> wrote: What amazes me in all the responses I am getting is that no one is either saying that the problem I have posed does not exist or it is not important to resolve, nor providing any alternative ways to resolve it. They are just arguing with parts of my proposal, which is fine, although I think, while no doubt this is a somewhat complex solution to a complex problem, no one has been able to show why it really cant work. To remind; the problem I had posed was about the very likely wrongful US's jurisdictional imposition on ICANN's process and vis a vis the root server maintainer. I had given a concrete example; of a US court pushing the well-known over-zealous US intellectual property law and enforcement to take away the gTLD of an Indian generic drug manufacturer even when the latter has no direct business interests or activities in the US... What is your response to such a very likely occurrence? It is highly unlikely, the likelihood approaching zero IMHO. Should we simply ignore it? yes, it is safe to do so. However, you must realise that after the IANA transition is finished, there will be absolutely zero appetite inside ICANN to make major reforms. I doubt you could get that Community to even consider such a proposal. Or, do you not think it likely, in which case lets discuss that If we must. Let's say that your scenario comes to pass. You do realise that ICANN would use the hundreds of millions of dollars in its legal kitty to fight such a court order, right? .... You cannot simply not respond to this key global governance problem that stares us in the face... (Apart from it, is the less likely but still to be remained prepared for possibility of the The Office of Foreign Assets Control of the US playing hanky panky with the gTLD of a country countries don't have gTLDs. that the US gets into serious enmity with.... every country likes to remain prepared for such an eventuality. You cannot deny them that right. )... No one seems to want to address these key global governance problems. Do they not exist? If they do, then what is your response to and preparedness for these? They are not key. They exist as a problem largely in your head. -- Cheers, McTim "A name indicates what we seek. An address indicates where it is. A route indicates how we get there." Jon Postel

Parminder: Many of the questions you raise are far outside of my areas of expertise. The questions which come to my mind are whether ICANN becoming an ITO would really immunize them against actions you describe? It may make it more difficult to execute an action but the complainants you describe generally have sufficiently deep pockets that this is largely a budget issue. And there is the other side of that coin. International adjudication has its own various track record. Is it a priori superior to US law? Particularly in areas ICANN is likely to be subject to actions, largely commercial matters. What about other jurisdictions -- others have advocated for Swiss incorporation, for example. That is relatively easy to obtain if so desired compared to an ITO status. Superior? Others? Also, as I believe Michael Froomkin pointed out previously, is such broad immunity even desirable? What are the potential downsides? For example if ICANN found itself in the grips of a rogue board what would a complainant prefer? An ITO or US corporation? I don't think the dialectic for this suggestion has been fully explored and thus it seems too early to enter into an advocacy position. -- -Barry Shein Software Tool & Die | bzs@TheWorld.com | http://www.TheWorld.com Purveyors to the Trade | Voice: +1 617-STD-WRLD | 800-THE-WRLD The World: Since 1989 | A Public Information Utility | *oo*

On Sunday 27 March 2016 07:34 PM, Roberto Gaetano wrote:

Parminder, You continue with this vague approach. Roberto,

I am sorry, but IMHO my approach can hardly be criticised as vague..... I have gone out on a leg and offered much more detail than anyone would normally do for this kind of a discussion at this stage of maturity of a proposal and its actual implementation.

I am not willing to give any "value" statement for something that I believe is not feasible Well , you said that theoretically you prefer international status for ICANN, and I thought that with this one means that if it were possible one does prefer it and does, in principle, value it more ... But you have a right to the best statement of your opinion...

- or, worse, that if done is worse than the starting situation.

Now, this is what I would call as vague. You dont tell me how is it worse (you only said, it is impractical, which is entirely a different thing, no)...

Therefore, I will drop this conversation unless there are some "real" things to discuss, i.e. answers to e.g. the following questions:

Happy to do so. Always. (Try also in turn to answer my questions in my previous email today where I pose the key governance question behind this conversation, and give your response to it, and if you have none, why so. thanks).

1) how would draft Bylaws and draft incorporation documents look like (hint: they cannot remain "as is" even if the functions that ICANN has to perform will be unchanged) I have proposed that they remain the same. Mrely incorporated in a treaty now ... There will be minor, non essential, changes in that incorporation documents would not respond to the Californian non profit law but to an international legal regime. What is the problem that you see here?

2) what would be the governance structure (hint: now the policy development is with the community, US has just the "power" of validating the changes to the root, and even that is going to vanish with the IANA Oversight Transition - obviously the new model must not give more powers to governments than the one that the US has today)

ICANN's working remains exactly as it is now. Its oversight becomes as decided in the CCWG proposal, that is, an internalised 'ICANN community' oversight. (I have some issues with it, but for the sake of this discussion I park them, and am ready to go with exactly as the new community oversight proposal is.)

3) what would be the role of the judicial system, i.e. what court decisions would affect ICANN's operations (hint: you are right, now US courts have a power that other courts do not have - however, the judicial system in a democracy is part of the balance of powers,

Ah, since you mention democracy, you must surely know that it is democracy only if the judiciary administers laws in making of which all the affected people participate, which is hardly the case vis a vis US courts and the global public as the constituency of ICANN. Lets not abuse the good name of democracy :). (BTW, are you a US citizen, I think not, right?).. What I am trying to propose is what is so much closer to democracy. In fact, that is my prime intent.

if you delete this power you unbalance the system, and create a situation where one level of accountability disappears, and the result will be an ICANN that has immunity whatever it does - I am sure this is not your intention,

You are very right. In fact that is why I want an external oversight apart from judicial redress, but certainly judicial redress at the very least. (I wont go into my external oversight proposal which is of a non gov and a multi stakeholder nature, bec I dont want to digress from the 'international incorporation' discussion.)

so I need to know what exactly, and how, you foresee as appeal to a judicial court, maybe the International Court of Justice or whatever, where a layman from anywhere in the world can appeal an ICANN decision)

Yes, lets discuss that. I have earlier proposed a special digital bench of the International Court of Justice -- we need to be really innovative here... We also can try to get around the current situation where only states can go to the ICJ... Something can be worked through the proposed treaty in conjunction with amendment to the incorporating treaty of the ICJ... In any case, ICJ can be asked for advice by any international org, and this route can be used to get its jurisdiction in. Anyway, here we need innovative thinking, and it is certainly not beyond the realm of possibilities. As long as we are not predisposed to despair early. Fadi has been going around saying that the new independent ICANN (which as I show is basically not independent but highly subject to various powers of the US state) is the model for addressing other areas of global governance. I am horrified to hear this -- US entities doing global governance!!?? I am not sure why others are not. And this is the horror that I am trying to address and remove. If indeed the narrative can rise to the level of completely new ways of global governance, we cannot despair too easily with innovations within and with respect to currently working international systems, where, whatever their other faults be, mercifully, all countries are treated equally, and democratically. I want my democracy, my right of self determination. I refuse to be subject to the US laws, jurisdiction and polity, of which I have no part in constructing.

4) what would this "brief" international treaty look like, and which countries would be ready to sign it (hint: no ether, a *real* text and a *real* statement of commitment from member states of the future International Treaty Organization that will be the signature and custodian of this International Treaty) My dear friend, you really want me to write the full text of the proposed treaty in this email exchange... I have said enough about what it would be.. If someone can pay for a small, say a month long, project, I can produce a perfect text as well :)... But you can see that I have mentioned all the key elements and these now only need to be filled in... Actually someone should support such a project. If one is indeed interested in diversity if views and possibilities.

And dear, you really want me to first get the signatures of all countries to a commitment to sign such a treaty!? But if you just want to get an idea who will sign, just go back to the last minute discussions of the WSIS docs. Almost every country other than the US would be ready, within a few months... And the US will have to come around by the force of global public opinion... Key political changes take place in this manner... Not first with a full fair text of the treaty, and signatures of all committed members.... think, for instance, where we will be with climate negotiations if we had insisted on the same terms, and that can be said practically for any worthwhile development in global governance, or governance at any level. You are putting impossible conditions.

Maybe others would have more questions in this line. Personally, I would not agree to any blank statement of principle without concrete answers to the questions above.

I am not making a blank statement of principles. I have been as concrete as one can be, and more, at this stage of the discussion. And I am ready to take this discussion towards even more concreteness.

In absence of this, I remain with my position, which is that international incorporation of ICANN, that preserves the current multi-stakeholder model, could be desirable in theory but is unfeasible in practice.

thanks for saying again that it is desirable in theory.... Most big changes begin that way... Although I dont know why you and others in ALAC are not ready to put that sentiment into a statement and seek its practical possibilities thereafter. BTW, I must add here -- for people who consider it practically possible that corporations can begin doing global governance on an equal footing with governments replacing the current - relatively - democratic model - which is such a big big fundamental shift - saying that what I am proposing is not practical looks extremely strange and out of place to me. regards, parminder

Cheers, Roberto

...

-----Messaggio originale----- Da: parminder [mailto:parminder@itforchange.net] Inviato: domenica 27 marzo 2016 14:51 A: Roberto Gaetano Cc: 'Seun Ojedeji'; 'At-Large Worldwide' Oggetto: Re: R: [At-Large] Is ICANN's oversight really moving away from the US government?

On Sunday 27 March 2016 04:57 PM, Roberto Gaetano wrote:

...

Parminder, I think that we have a communication problem. I have perfectly understood that you do not want to create a new structure to do what ICANN is doing, you "only" propose to incorporate ICANN in a way that it takes the shape of an international treaty organization - either an already existing one or a brand new one. And this incorporation process is what I am asking you to describe. Thanks Roberto, that makes it easier for us to move forward.

...

You might be surprised to learn that, in theory, I would surely prefer international incorporation of ICANN rather than US incorporation. That is great. Can we all agree on this and incorporate it in a value statement. Things move forward like that. Public interest or civil society groups - of which I take ALAC to be a site - first agree on such value statements. Once such a normative standard is agreed to, it is never impossible to find the best fit institutional form (knowing that no solution can be perfect and it can only be better than the others available - like a US incorporation of ICANN, for in this case - for the required and given considerations.)

...

However, it is the practical implementation of an international incorporation of ICANN that preserves the current multi-stakeholder model that I believe is unfeasible. I described a process whereby international incorporation will preserve the current multistakeholder model, by this model being inscribed centrally in the very text of a new (brief) treaty. And the US, and other multistakeholder (MS) model supporting governments, make it a basic condition for agreeing to the treaty. And since such a treaty can be overruled or its text changed only with consent of US and other MS model supporters, it can never happen. This way, what you agree as a theoretical preference, and thus I think you consider as normatively much more desirable, can be practically achieved. You have not pointed to any defect in my proposal. But in doing so please remember that we can not just go by past experience and we should use all possibilities of innovative available to us, within practical possibilities. And also nothing is ever perfect and evaluation should be relative .

...

And my question is how do you see this international incorporation happening (ByLaws, separation of powers, etc.). I have mentioned the basic elements above. A simpler option is to do incorporation with no external oversight, and only internal oversight as proposed in the final ICANN accountability proposal now. (I myself in fact prefer an added external oversight, which proposal I will keep separate for now not to confuse the international incorporation discussion here. But as my article says, this proposed external oversight is not to be of governments. If you or others have interest, I can also share that part separately. But for discussing international incorporation just forget that part. We go by the currently proposed internal oversight model and inscribe it in the proposed treaty. ) In simple words, it is pointless to continuing describing the ethereal wonders that this future arrangement will bring: Nothing ethereal in the above above. But of course you have to be looking froward. We have, for instance, been thinking for years how we will convince countries - all of which are interested in faster economic growth - to agree to begin reducing emission rates... But the Paris agreement did make some progress on this. Same thing can be said of nuclear armament, human rights compliance, SDG goals, and so many other things. There are forces of global public governance and consensus making always at work, they work slowly and one must believe in them. And different actors have different roles in the process. The role of concerned public interest and civil society groups - what I characterise ALAC to be - is to be driven by higher values and public interest, be forward looking, and pro-actively contribute normative and practical proposals and texts, like for a possible treaty of the kind I have mentioned.

...

I want to know how you would do it in practice, for instance how you convince member states to create an oversight structure that remains an oversight structure and leaves the policy making process as is. Having followed this issue since the WSIS, I think most member states, other than the US, are convinced, and would agree within months. The US will get convinced as it did get convinced to go for the current oversight transition, after Snowden disclosures, from the pressure of public opinion - an all important force we normally ignore in our analyses. But for this pressure to form and build up, public interest and civil society groups have a big role. But if they just give up any forward looking proposal as being too difficult, no progress will ever get made... This is why I appeal to groups like the ALAC and other IG public interest/ civil society groups to take the initiative in this regard. Such initiative should always come from these quarters, governments are too busy with the here and now to do it.

parminder

...

Cheers, R.

...

-----Messaggio originale----- Da: parminder [mailto:parminder@itforchange.net] Inviato: domenica 27 marzo 2016 08:30 A: Roberto Gaetano Cc: Seun Ojedeji; At-Large Worldwide Oggetto: Re: [At-Large] Is ICANN's oversight really moving away from the US government?

On Saturday 26 March 2016 09:43 PM, Roberto Gaetano wrote:

...

...

Il giorno 24.03.2016, alle ore 10:00, parminder <parminder@itforchange.net> ha scritto: International incorporation either follows a new treaty, or can be under the UN.... Correct. And I do believe that either case is far from simple. No one says we are dealing with simple things here. They are very complex, certainly. Just stating the principle is "ether" - unless it is vested with a practical proposal. I am happy to give practical proposals, as I have often done, as long as you promise to tell me what if anything is wrong in it, and the response does not disappear into the ether :)

I'll try to be brief... Unlike what you say below, and John was arguing, there is no proposal from my side for any other agency to replace ICANN's current working. It is supposed to be preserved as it it. I am not sure why I am unable to make this clear despite stating it repeatedly. The proposal is just to have immunity from currently applicable US jurisdiction - executive, legislative and judicial - over ICANN, which does not change with oversight transition process, and which is very dangerous and unacceptable to non US people. Such immunity requires international incorporation of the ICANN, with the incorporating document clearly, legally, preserving, ICANN's current mandate and working.... This incorporating document can be in form of a very brief treaty, laying our and legitimising (in international law) the mandate and work methods of ICANN (as they are) and further granting immunity from host country jurisdictions.

The text of such a short treaty document will require to be such that US would accede to, and it can make sure that ICANN's status quo is protected... There will be no way to change that status quo - believe me, there is a rule of law in the international domain - unless US (and its allies) agrees to such a change. And there is no reason that it will. Such an arrangement protects the ICANN's global governance role both from US's unilateral interference (from which it is not protected right now) and of any other country, including, the very unlikely chance of all non US countries ganging up because still US will have to agree to any change..... Now please tell me why and how this arrangement is not a better protection from any undue interference with ICANN's mandate and working than the current arrangement whereby (even post transition) US's judicial, legislative and executive agencies can any time interfere with ICANN's working? No solution will be perfect, but trade offs between different kinds have to be assessed, form the point of view of people worldwide, and not just of the US and its allies.

My article also gave a clear example.... Say, the US pharma industry brings up a case against an Indian generic drug manufacturer, Sun Pharma, with the gTLD .SuPha, in a US court alleging that the latter is compromising its patents in its global generic drug business, a case which otherwise done not hold either in an Indian court or of those countries to which SunPharma sells its drugs, and the US court orders seizure of all US based assets of SunPharma including its gTLD. Accordingly, the US court orders ICANN to de-notify .SuPha and the root server maintainer to remove it from the root file. This is an extremely likely scenario... I can give a thousand similar examples of various issues that US gov and US business can have with many entities of other countries, whereby similar consequences can follow. Is this fair...? Is such a non democratic system acceptable in this world in the 21st century? Why should non US actors, people and countries accept such a system? Do you have any preparation of defence against these very likely, in fact inevitable scenarios (esp with new gTLDs) ?

In the circumstance, how is an international incorporation for ICANN with host country immunities not better?

parminder

...

1. Under the UN OK. Where exactly? Which already existing UN organization will extend its current mandate to cover the assignment of Internet domain names, IP addresses and protocol parameters? Hint: in the past the ITU had thought to be taking this task, but then its governing body (the Member States) have abandoned the idea. These days countries are very sensitive to money matters. Extend the mandate of an UN organization will mean more funding - and you bet their respective governing bodies (General Assembly or General Conference of the Member States) will say "no". But you are welcome to launch a proposal and try - but it is not the ICANN community that you need to address, but Member States of an existing UN organization. Otherwise, it is "ether".

2. New Treaty OK. What would be the articles? Would it be different from the ICANN Bylaws, and if so what would be the role of the community to endors the change? No "ether" please, just sentences black on white. How would you convince the potential signatories (that I would assume would be the member states)? This is a far from trivial task. As I have pointed out in a previous message, the CTBTO is still dormant after more than a decade because the number of countries needed to sign in order to bring the protocol in force has not been reached yet. And we are talking about something sensitive like the ban of nuclear tests, on which the vast majority of the population agrees. Just as a side note, another very critical international treaty is the nuclear non-proliferation treaty. Everybody agrees about non-proliferation of nuclear weapons, right? It is a matter of the paramount importance for the survival of the humanity, right? However, some countries did not sign, and are therefore not under the obligation to comply with the treaty. In short, they are free to manufacture nuclear weapons outside any international control. Incidentally, India is one of those countries, who have not signed the treaty. Wonder why? Still thinking that this is an easy task? Go ahead, and please tell my grand-children when this materializes in something different than blah-blah, or "ether" as you call it. Cheers, and good luck. Roberto

Roberto, Thank you very much for your patience and pedagogy (being based on your enormous experience in international organisations on one side, and in ICANN and ICANN-making-from-scratch on another side). The issues "how to create international body without having international jurisdiction, is it possible?" and "what would be possibles outcomes in case of giving ICANN an absolute power above each and every sovereign country, implying outside of each and every jurisdiction and constitution" should be given as exercices to every group of ICANN newcomers. With presentations by mathematicians (those boring persons, able to imagine strange topologies) and by lawyers (those boring persons getting white hair or bold head in trying to imagine how to draft legal texts in strange topologies). Kind regards to all, Elisabeth Porteneuve veteran of the Internet Le 29/03/2016 18:21, Roberto Gaetano a écrit :

Parminder, I will only address the questions/answers.

1. Bylaws

...

I have proposed that they remain the same. Mrely incorporated in a treaty now ... There will be minor, non essential, changes in that incorporation documents would not respond to the Californian non profit law but to an international legal regime. What is the problem that you see here? The problem I see here is that the ICANN Bylaws are drafted giving the decisional power to the Board of Directors. This will change if we incorporate ICANN as an International Treaty organization, because in this case the trustees of the International Treaty will be the Member States, and the governing body will be the General Assembly (or General Conference) of the Member States.

2. Governance structure

...

ICANN's working remains exactly as it is now. Its oversight becomes as decided in the CCWG proposal, that is, an internalised 'ICANN community' oversight. You forget that in an International Treaty Organization the governing body is always the GA/GC of the Member States (see above). Or are you envisaging an International Treaty Organization where the General Assembly of the Member States would delegate its powers to a Board that they do not have any way to influence?

3. Judicial system From your long text I understand that you look for something like the ICJ. That's a good start. However, unless my information is out of date, this requires changes to the scope of the ICJ, that as of today does not discuss cases presented by physical nor juridical persons, only governments. Maybe we can explore WTO and WIPO - which incidentally are the bodies that ICANN uses for arbitration on domain names disputes

4. The international treaty

...

My dear friend, you really want me to write the full text of the proposed treaty in this email exchange... I have said enough about what it would be Not really. But if you have an idea of what it would look like, it will be sufficient to have a bullet point list. No long speeches about "democracy", just simple sentences. And dear, you really want me to first get the signatures of all countries to a commitment to sign such a treaty!? But if you just want to get an idea who will sign, just go back to the last minute discussions of the WSIS docs I have enough experience to tell the difference between "last minute discussions" and an engagement. Indeed, I would like to have engagement by potential signatories before losing time on an initiative that I strongly believe will not stand a chance of success, as I believe I have explained.

And this brings me to the answer to your question on why ALAC is not engaged on this initiative. I do not know about ALAC as a whole, but I can give you my reason for not losing time on this. Regardless the chances of success, that I believe small (but this is only my personal opinion, I might be proven wrong), the main issue is that Internet users have other priorities. At the meeting in Marrakesh there were new people, participating for the first time. This time the majority of newcomers were from Africa, but in previous meetings we had newcomers coming in majority from other ICANN regions, but their observations and concerns were always the same. They talk about accessibility, training, sharing of experiences, cost of online presence (including domain name purchase). Next comes security and privacy. What nobody raises as an issue is the incorporation of ICANN. It seems to be, by and large, irrelevant - or at least far less important than problems that affect everyday's life of Internet users. That's why I am dedicating the little time I have available to these other issues. As a matter of fact, I believe that I have spent far too much time in this conversation, as we can only agree on the fact that we disagree. And this will not change, no matter how long we will carry on this discussion. Cheers, R.

_______________________________________________ At-Large mailing list At-Large@atlarge-lists.icann.org https://atlarge-lists.icann.org/mailman/listinfo/at-large

At-Large Official Site: http://atlarge.icann.org