What are the advantages or disadvantages, if any, relating to ICANN's jurisdiction*, particularly with regard to the actual operation of ICANN’s policies and accountability mechanisms?
Please support your response with appropriate examples, references to specific laws, case studies, other studies, and analysis. In particular, please indicate if there are current or past instances that highlight such advantages or problems. In terms of likely future risk, please mention specific ways in which U.S. or California laws safeguard or interfere with, or may be used to safeguard or interfere with, ICANN's ability to carry out its policies throughout the world.
For any disadvantage identified, please identify alternatives (including other jurisdictions), if any, where that problem would not occur. For each such jurisdiction or other alternative, please specify whether and how it would support the outcomes of CCWG-Accountability Work Stream 1, identify the risks of those jurisdictions or other alternatives, and discuss the risks associated with changing from the current situation.
_________________
* For these questions, “ICANN’s jurisdiction” refers to (a) ICANN being subject to U.S. and California law as a result of its incorporation and location in California, (b) ICANN being subject to the laws of any other country as a result of its location within or contacts with that country, or (c) any “choice of law” or venue provisions in agreements with ICANN.
I'm very much ad idem with Greg on this, who has set this out in much more detail.
Kavouss asked what I was responding to. It was this
> Drafting proposal 3rd Paragraph, 2nd line: „ … specify whether
> those jurisdictions (incl. international law) would support …“
My reservation is simply that I am not grasping how a possible future ICANN could be in under an international law jurisdiction without an intergovernmental agreement of some sort (let's call it a Treaty) and an agreement between ICANN and the country where it has its seat (let's call that a host country agreement).
And, as I know this is the very scenario ICANN was set up in the form of a private law, non-profit organisation to avoid, I can't yet see how spending time and money on that concept advances matters much.
I must be missing something.
Is there another form of 'being under the jurisdiction under international law' that ICANN could choose?
On 05/12/16 02:13, Greg Shatan wrote:
Erich, Nigel and all,
"International law" gets us into a bit of a morass. First, we need to
define what is meant by "international law." "International law" is
often used to mean the laws that governs relations between states; this
is sometimes called "public international law." Public international
law (or international public law) concerns the treaty relationships
between the nations and persons which are considered the subjects of
international law. Norms of international law have their source in
either: custom, or customary international law (consistent state
practice accompanied by opinio juris), globally accepted standards of
behavior (peremptory norms known as jus cogens or ius cogens),
or codifications contained in conventional agreements, generally termed
treaties.
https://en.wikipedia.org/wiki/International_law#Public_ .international_law
Public international law issues can include the law of treaties,
international responsibility, State succession, State and diplomatic
immunities, the law of international organizations, international
investment law, international human rights law, the law of the sea and
international trade
law. https://www.clearygottlieb.com/practice-landing/public-inter national-law
"Private international law," by contrast typically refers to relations
between private entities. One definition is: Private International
Law is the legal framework composed of conventions, protocols, model
laws, legal guides, uniform documents, case law, practice and custom, as
well as other documents and instruments, which regulate relationships
between individuals in an international context.
http://www.oas.org/dil/private_international_law.htm On the other hand
"private international law" is sometimes defined as being the same as
"conflict of laws" -- dealing with situations about which law applies to
disputes between private parties of different nations and/or where there
are contacts with other nations and/or courts.
The relationship between international law and the tasks of this
subgroup is not entirely clear, at least not to me, and I tend to think
a reference to international law would further muddle this question.
But we should be open to some further discussion on the matter.
Greg
On Sun, Dec 4, 2016 at 5:04 AM, Nigel Roberts <nigel@channelisles.netTel. +43 1 4277 35305 <tel:%2B43%201%204277%2035305><mailto:nigel@channelisles.net>> wrote:
I'm slightly puzzled about this.
Under what circumstances could ICANN's jurisdiction be (a) under
'international law' and (b) not under the law of a particular state
(for these purposes it doesn't matter if that state is the USA 0 as
currently -, Switzerland, or Transdniestr).
My understanding is that international law only applies between
states (this comes from my originating in a dualist state), and
therefore for ICANN to be under 'international law', there would
need to be a founding Treaty, subscribed to by Member States, and a
Host Country Agreement specifying the privileges and immunities of
the organisation.
In otherwords, ICANN would become multilateral, instead of
multistakeholder.
And I thought that's what we'd just spent 20 years avoiding.
Please expand on your thinking!
On 04/12/16 09:48, Schweighofer Erich wrote:
Greg,
Nice work. I support this additional question, but would not
exclude international law as such. There is some preliminary
research work showing the challenges and encouraging the status
quo. The argumentation line would be clearer.
Drafting proposal 3rd Paragraph, 2nd line: „ … specify whether
those jurisdictions (incl. international law) would support …“
Best, Erich
ao. Univ.-Prof. Mag. DDr. Erich Schweighofer
Arbeitsgruppe Rechtsinformatik
Institut für Europarecht, Internationales Recht und
Rechtsvergleichung, Universität Wien
Schottenbastei 10-16/2/5, 1010 Wien, AT, Fax +43 1
4277 9353 <tel:%2B43%201%204277%209353>
Erich.Schweighofer@univie.ac.at
<mailto:Erich.Schweighofer@univie.ac.at >
http://rechtsinformatik.univie.ac.at
<http://rechtsinformatik.univie.ac.at >
Von: Greg Shatan<mailto:gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com >>
Gesendet: Sonntag, 4. Dezember 2016 05:47
An: ws2-jurisdiction@icann.org
<mailto:ws2-jurisdiction@icann.org ><mailto:ws2-jurisdiction@icann.org Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann
<mailto:ws2-jurisdiction@icann.org >>
Betreff: [Ws2-jurisdiction] Proposed Additional Question
All,
On the list and the most recent Jurisdiction Subgroup call, we
have been discussing a proposal to add another question to the
questionnaire being prepared by this group. Specifically, we've
been discussing
1. Whether this question should be sent out by the Subgroup; and
2. The drafting of the question.
On the first point, there was a fairly even split (among the few
who responded) on the call. On the list, there were about twice
as many responses opposed to sending the question, at least as
originally drafted.
Before revisiting whether to send the question out, we should
continue to refine the question, so that it's clear what
proposed question we're considering.
I've gone through the email thread discussing this question, and
I've pulled out the various formulations of the question. I've
also pulled out the comments that had suggestions regarding the
scope and wording of the question. These appear directly
below. That way, we can all see how the discussion evolved on
the list. Taking into account the various formulations and the
various comments, as well as the language of Annex 12, I've
prepared the following proposed formulation for the Group's
review and comment:
Fourth proposed formulation
What do you think are the advantages or problems, if any,
relating to ICANN being under U.S. jurisdiction and subject to
U.S. and California law, particularly with regard to the actual
operation of ICANN’s policies and accountability mechanisms?
Please support your response with appropriate examples,
references to specific laws, case studies, other studies, and
analysis. In particular, please indicate if there are current
or past instances that highlight such advantages or problems.
Also, in terms of likely future risk, please mention specific
ways in which U.S. or California laws safeguard or interfere
with, or are likely to be used or interfere with, ICANN's
ability to carry out its policies throughout the world.
For any problem identified, please identify other jurisdictions,
if any, where that problem would not occur. For each such
jurisdiction, please specify whether those jurisdictions would
support the outcomes of CCWG-Accountability Work Stream 1,
identify the future risks of those jurisdictions, and discuss
the risks associated with changing jurisdictions.
PLEASE REPLY TO THIS EMAIL WITH YOUR COMMENTS AND FURTHER
PROPOSED REVISIONS. Thank you.
Greg
Original proposed formulation:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit?
Please justify your response with appropriate examples,
analysis, etc. Especially, if there are existing and past
instances that highlight such problems please indicate them.
Comment:
It should, however, be made by specific reference to existing
laws that could be used to interfere with ICANN's ability to
provide service to customers in other countries.
Comment:
If we were to go in this direction we would also need to add
something like "What do you think the problems would be, if any,
of changing jurisdiction..."
Second proposed formulation:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit?
Please justify your response with appropriate examples,
analysis, etc. Especially, please indicate if there are existing
and past instances that highlight such problems. Also, in terms
of future likelihood, please mention specific institutions/ laws
etc of the US state that could be used to interfere with ICANN's
ability to provide global governance services to all people of
the world, including in non US countries.
Comment:
An unbiased question would also ask about advantages and
protections, and ways in which the current jurisdictional
arrangement supports ICANN's ability to carry out its mission.
I also find the focus on the concept of the "jurisdiction of the
US state over ICANN," to be quite puzzling. The primary focus
of this group has been on the effects of "governing law"
(whether it results from a legal or physical location of ICANN
or from a contractual provision, etc.) and not on some idea
that the US Government is somehow poised to strike and exercise
unilateral power over ICANN in some undefined (and possibly
non-existent) fashion.
Comment:
I would oppose this as it relates to future risks unless the
responders also identified other potential jurisdictions where
those future risks would not be realized and assessed the future
risks of those potential jurisdictions of transfer.
Third proposed formulation/comment:
What do you think are the problems, if any, with continued
jurisdiction of the US state over ICANN, as a US non-profit?
Please justify your response with appropriate examples,
analysis, etc.
... with appropriate examples, references to specific laws, case and
other studies, analysis, ...
Especially, please indicate if there are existing and past
instances that highlight such problems. Also, in terms of future
likelihood, please mention specific institutions/ laws etc of
the US state
I think it might be good to couch this in terms of risk
analysis. Risk
is real and analyzing it is a common activity.
Also in terms of likely risk, please ...
that could be used to interfere with ICANN's ability to provide
global governance services to all people of the world, including
in non US countries.
Comment:
If we are going to allow speculation as to potential future
issues that have not arisen and may never arise based on
analysis that is grounded only in theory without any connection
to practice then the natural question is whether those
speculative harms would be ameliorated by changing jurisdiction
and also whether changing would give rise to other, different,
speculative harms. If we want to just guess, let's guess not
only about the horrors of remaining in the US, but also the
horrors of moving.
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