Re: [Ws2-jurisdiction] Focus, Working Method and Revisions to Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed Questions and Poll Results]

Dec. 28, 2016


      I agree that problems is a better term.  I was using "issues" in the
lawyerly sense, which does mean a real, demonstrable problem, and not
merely a hypothetical assertion.

Greg

On Tue, Dec 27, 2016 at 9:19 PM Phil Corwin <psc@vlaw-dc.com> wrote:
...
I support alternative 1 of question 4.
Rather than issues, I believe we should be focus on on demonstrable
problems. Issues can just consists of debating points absent real world
evidence of something broken or substantially sub-optimal requiring a
remedy.
*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*
*"Luck is the residue of design" -- Branch Rickey*
------------------------------
*From:* ws2-jurisdiction-bounces@icann.org [
ws2-jurisdiction-bounces@icann.org] on behalf of Greg Shatan [
gregshatanipc@gmail.com]
*Sent:* Tuesday, December 27, 2016 3:28 PM
*To:* ws2-jurisdiction@icann.org
*Subject:* [Ws2-jurisdiction] Focus, Working Method and Revisions to
Proposed Questions: RESPONSE REQUESTED [was: Jurisdiction Proposed
Questions and Poll Results]
All,
I'm sending this to the Jurisdiction subgroup list, since this was
initially send to a discussion thread on jurisdiction taking place on the
CCWG list.
*Please respond here, rather than there.  Thank you.*
Greg
The following responses were received on the Accountability list:
*Parminder*:
Greg/ All
I think the Alternative 1, which you take as likely candidate for broader
support, is fine. I list this formulation below:
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.
(* 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.)
ENDS
Lets move on with it. We are spending too much time on framing a question.
*Kavouss Arasteh: *
Grec,
Tks again,
As I said I believe ,it is counter productive to discuss many alternative,
I could agree with formulation of Parminder
Regards
Kavouss
*Sam Lanfranco:*
Greg,
Thank you for presenting alternatives for reaching agreement on a
* Roadmap for Moving Forward to identify operational issues embedded in
the overall “jurisdiction” issue*. It is important to recognize that what
is being proposed is the choice of roadmap for moving forward. Where this
takes us will flow
from the assembly of evidence, the application of analysis, and the
resulting array of possible options for addressing jurisdiction base
operational issues.
Sam Lanfranco
---------- Forwarded message ----------
From: *Greg Shatan* <gregshatanipc@gmail.com>
Date: Tue, Dec 27, 2016 at 2:56 AM
Subject: Re: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
Results
To: "accountability-cross-community@icann.org" <
accountability-cross-community@icann.org>
All:
Two quick but important points:
1.  We have strayed from the basic topic in front of us, which is to
decide on the formulation of the questions to be sent out.  I have gone
through the emails and meeting notes and pulled the alternative formulations
and revisions in to a single document, attached to this email.
With regard to question 4, I believe that the best way to move forward is
to see if one of the alternatives gets stronger support within the CCWG.
If we can get to a point where there is broad support for the question
without significant opposition that may resolve issues relating to whether
and when this question will be sent out.
2.  Our overall agreed-upon working method is to first identify, discuss
and arrive at a list of issues that raise concerns, and then move on to
identifying, discussing and arriving at a list of potential remedies
for each issue on our list.  We are still working on issues.  For a remedy
to be up for discussion when we move to discussing remedies, that remedy
needs to provide a solution to an  issue.  We can't discuss a potential
remedy without having an issue it is
intended to solve.  If there is a potential "remedy" but it does not solve
any of our issues, we won't discuss it.
We've already put aside one potential "remedy" until we see whether we
identify any issues it would solve -- the "remedy" of changing ICANN's
jurisdiction of incorporation or headquarters location.  "Immunity" is
another potential remedy that we need to deal with the same way.  Skipping
forward to discussions of remedies is only slowing down our discussion of
issues.  I strongly suggest we refocus on issues, so that we can get to the
discussion of remedies.  Once we've
agreed on a list of issues, a discussion of remedies will be more
productive.
Our working method of dealing with issues first and then remedies may also
help us find agreement on a way to deal with question 4.  Questions 1-3
clearly deal with issues.  Perhaps a version of question 4 that is
limited to asking for issues will get broader support ("Alternative 1" on
the attachment may fit this description.)
Greg
On Mon, Dec 26, 2016 at 1:41 PM, Seun Ojedeji
<seun.ojedeji@gmail.com> wrote:
Hello,
I also don't see the logic in sending two questionnaires. There may be
some logic in treating the responses to questions 1 to 3 separate from
question 4, but we are not yet at that stage. It will be better the
question is not added at all than
to send it as a separate questionnaire.
Overall I am indifferent about adding or not adding but since there is
seemingly a lot of support to add, I don't see the significant harm it will
cause by doing that[1]. Based on the response of the Co-Chairs to my
question, I would suggest that it's better
to let all the 4 questions be presented and let's see what issues emerge
from their responses. Then we can start to do a few round trips to legal
and hopefully remind ourselves the possible consequences of addressing
certain issues in a particular way. Some
of which has already been echoed during WS1.
Regards
1. Nevermind that it could generate some political news/headlines but am
sure this group is already used to that by now ;-)
Sent from my LG G4
Kindly excuse brevity and typos
On 26 Dec 2016 19:19, "avri doria" <avri@acm.org> wrote:
Hi,
Where we differ is on the idea of separating the questions into 2
questionnaires.
I think it is going to be hard enough to get people to pay attention to
one questionnaire, asking them to do two is daunting. A fourth question
will not test their patience in the same way another questionnaire would.
So with Kavouss I say:
...
Allow all 4 questions go out and then wait what will happens  .
avri
On 26-Dec-16 11:42, Mueller, Milton L wrote:
...
...
-----Original Message-----
...
...
At the same time, let us all try to return to a constructive and
step-by-step
...
...
approach, building on the progress made so far, in order to make
progress on
...
...
our mandate, established by the whole multistakeholder community back in
...
...
Marrakech.
...
I agree, and I think both Pedro's and Phil's position are based on some
confusion of issues. It we calm down a bit and look at this more carefully
we can make progress.
...
...
Pedro may be confusing the inclusion or exclusion of Question 4 in our
initial request with the question of whether we explore issues in US
jurisdiction at all.  But excluding Question 4 from our initial request for
information is not the same as a refusal
to explore the questions it raises. I have proposed _separating_ Q4 from
the other 3 questions, not eliminating it entirely. I proposed this not
because I want to avoid the questions Q4 poses, but because I want those
questions to be developed better and I
want to avoid conflating it with the narrower questions about dispute
resolution that Q's 1-3 were designed to address. It is a mistake to put
those two things together. The information we gather from Q's 1-3 will
suffer from their attachment to the potentially
more controversial issues raised by Q4. Let me also add that the divisive
insistence that this is a matter of US citizens vs non-US citizens needs to
be dropped. Avri and myself, e.g., are both US citizens/residents and have
serious concerns about possible
intrusions of US foreign policy and other nationalistic and governmental
concerns into ICANN matters. At the same time we are both staunch
supporters of a nongovernmental model in this space and have no inherent
objection to California law as ICANN's basis.
...
...
Phil Corwin on the other hand is confusing the issue of whether ICANN's
corporate HQ is in California with the question of whether ICANN will be an
intergovernmental entity. These questions have very little to do with each
other. It is of course true that
there are still a few people out there who would like for ICANN to become
intergovernmental, but they are a tiny minority and the weight of history
is totally against them. Put more bluntly, it ain't gonna happen.
Supporters of the MS model and opponents of
intergovernmentalism have legitimate reasons to investigate the impact of
US jurisdiction, because the US is a global power with very specific
foreign policy and military interests. US jurisdiction thus may have the
potential to create opportunities for one
government -  the US - to have an inappropriate level of influence over
ICANN's transnational, nonstate actor based governance processes. One can
consider those issues without implying that ICANN's corporate HQ needs to
move.
...
...
So let's stop making the status of Q4 a proxy for a long-settled war
over whether ICANN is private or governmental, and let's stop pretending
that those who want to separate the issues raised by Q4 from the narrower
more focused issues in Q1-3 are trying
to avoid legitimate issues.
...
...
As for creating a separate CCWG, are you kidding? This is the CCWG
subgroup created specifically for jurisdictional issues and we don't make
difficult issues easier to resolve by creating additional structures.
...
...
Dr. Milton L. Mueller
...
Professor, School of Public Policy
...
Georgia Institute of Technology
...
...
...
...
...
In this vein, and consistent with our conversation in Hyderabad, let us
...
...
continue with the line directed to requesting input from the wider
community.
...
...
...
...
The four questions developed so far will allow us to gather much needed
input
...
...
on facts, examples and well-founded opinions on the influence of ICANNs
...
...
jurisdiction, taking into account its multiple layers, on its
operations and
...
...
accountability.
...
...
...
...
If we all are constructive and accept esch others' views as worthy of
further
...
...
discussion and study, we will be able to get this important step
further.
...
...
...
...
Hence, let us please stay on the right track and finalize formulations
of all four
...
...
questions, and keep up the good spirit of cooperation.
...
...
...
...
with my best wishes for you all during the festivities
...
...
...
...
kind regards
...
...
...
...
Jorge
...
...
...
...
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...
________________________________
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...
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...
Von: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>
...
...
Datum: 24. Dezember 2016 um 15:53:55 MEZ
...
...
An: Greg Shatan <gregshatanipc@gmail.com>, parminder
...
...
<parminder@itforchange.net>, Kavouss Arasteh
...
...
<kavouss.arasteh@gmail.com>
...
...
Cc:
accountability-cross-community@icann.org <accountability-cross-
...
...
community@icann.org>
...
...
Betreff: [CCWG-ACCT] RES: Jurisdiction Proposed Questions and Poll
Results
...
...
...
...
Dear CCWG-colleagues,
...
...
...
...
After reading some comments in this email thread, I must admit to be
really
...
...
disappointed.
...
...
...
...
Some of our colleagues in the CCWG seem to have forgotten - perhaps on
...
...
purpose - that the topic of jurisdiction was allocated to WS2 as a
result of a
...
...
postponement, since the majority of this group thought it was not
appropriate
...
...
to deal with it in the pre-transition period due to time constraints. My
...
...
government  was not in favor of postponing the discussion on
jurisdiction, as
...
...
we consider it was - and remains - a fundamental aspect of a new ICANN
truly
...
...
governed by the multistakeholder community without any pre-conditions,
...
...
but in respect to the viewpoint of the other colleagues, we agreed to
move it
...
...
to WS2.
...
...
...
...
Now that time has come to properly deal with this topic, it is quite
frustrating
...
...
to notice that some participants  insist on limiting and/or
procrastinating this
...
...
debate, including by using the absurd argument that any discussion
around
...
...
jurisdiction cannot put into question any aspect already decided in WS1,
...
...
which is embedded in the California law. We cannot see good faith in
that kind
...
...
of circular argument.
...
...
In our view, the  discussion around the inclusion or exclusion of Q.4
shows
...
...
quite clearly that some of those who have fiercely objected to any
jurisdiction
...
...
debate during WS1 are  maintaining their objection in WS2 as well. On
that
...
...
particular topic (Q.4) we concur with the view that upon deciding on
...
...
institutional arrangements we should not only consider already occurred
...
...
cases but also take into account logically strong possibilities. The
responses to
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...
the questionnaire should thus help us to deal with all possibilities
associate to
...
...
jurisdiction. In case any unsubstantiated opinion will be received, it
should be
...
...
summarily discarded.
...
...
From the various jurisdiction calls it became quite evident that a
substantial
...
...
part of the subgroup - mainly non-US - has great interest in examining
and
...
...
debating ways through which we can make sure that any issue associated
to
...
...
jurisdiction  be addressed in a way compatible  with the company's
...
...
international remit of coordinating Internet public identifiers. In
that context, I
...
...
would like to highlight my government´s understanding that although the
...
...
proposed questionnaire under discussion may provide us with some
relevant
...
...
factual information, it does not in any way cover all aspects of
interest. We
...
...
would like to refer, for example, to the list of issues compiled by
Kavouss
...
...
Arasteh as per his 13 December 2016 e-mail. We would also refer to
...
...
questions that have continuously been asked by Parminder, apparently
...
...
without any satisfactory answer. Those issues and questions include, for
...
...
example, dispute settlement related topics, which demonstrates, in our
view,
...
...
that jurisdiction cannot be seen purely from businesses´ viewpoint. As
...
...
someone has stated, we also need to look at the relationship between
ICANN
...
...
and third parties and adequately consider non-contracted Parties that
might
...
...
be affected by ICANN´s acts and/or omissions.
...
...
From the perspective of the Brazilian government, the topics raised by
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...
Kavouss, Parminder and others are issues of particular interest  which,
...
...
needless to say, will not be adequately addressed through the mere
analysis
...
...
of the answers provided to the questionnaire, whether it includes Q.4
or not.
...
...
My government has  expressed its interest in pursuing discussion on
...
...
jurisdiction through those angles  many times - both  during the IANA
...
...
transition process and  well before that. Other governments have done
the
...
...
same, as well as a sound number of civil society organizations around
the
...
...
globe. The "NETmundial Multistakeholder Statement", while calling for
the
...
...
internationalization of ICANN, clearly expresses this as well. Let me
...
...
emphasize, by the way, that the NETmundial Statement calls for ICANN´s
...
...
internationalization and not for it to become an intergovernmental
...
...
organization. Those are two different notions that should not be
confounded.
...
...
...
...
If this subgroup fails to deal with the multidimensional issues
associated to
...
...
jurisdiction  properly , it may be applauded by some segments , but it
will not
...
...
contribute to putting in place a framework that will ensure the shared
goal of
...
...
making ICANN a legitimate  entity in the eyes of all stakeholders,
including
...
...
governments. To achieve that, no issues should be discarded as "non
...
...
important" or "not yet verified". While preserving the essence of what
was
...
...
achieved in WS1, innovative thinking, including on the part of persons
with
...
...
legal expertise, will be needed. Is it worth to wipe an important
debate under
...
...
the carpet just to comfort one or a few stakeholder groups while
...
...
discontenting others? What kind of legitimacy is such a biased and
limited
...
...
exercise likely to have within the international community? .
...
...
...
...
It is time the subgroup - including the coChairs - make a honest
assessment of
...
...
the various viewpoints related to  ICANN's jurisdiction and conduct the
debate
...
...
as openly as possible in order to address all the concerns and
interests behind
...
...
it.
...
...
...
...
Kind regards,
...
...
...
...
Sec. Pedro Ivo Ferraz da Silva
...
...
Division of Information Society
...
...
Ministry of Foreign Affairs - Brazil
...
...
T: +55 61 2030-6609 <+55%2061%202030-6609>
...
...
...
...
________________________________
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...
De:
accountability-cross-community-bounces@icann.org [accountability-
...
...
cross-community-bounces@icann.org] em nome de parminder
...
...
[parminder@itforchange.net]
...
...
Enviado: quinta-feira, 22 de dezembro de 2016 14:01
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...
Para: Kavouss Arasteh; Greg Shatan
...
...
Cc:
accountability-cross-community@icann.org
...
...
Assunto: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
Results
...
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...
...
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...
Dear Kavouss
...
...
...
...
You are right, we should first deal with the issue of the questionnaire.
...
...
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...
I agree, as do many others, that there is no justification to remove the
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...
proposed Q 4 from the questionnaire. The question must go out along with
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...
others.
...
...
...
...
A question seeking information is only a question seeking information.
People
...
...
may chose to not respond to it, or give different responses, likely in
...
...
opposition to one another. That is all very fine, and quite expected.
But such
...
...
forceful arguments to not ask for certain kinds of information is very
...
...
disturbing, even alarming. (I have issues with how the other questions
are
...
...
framed, but I am fine to let them go out because some people want them
to
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...
be posed.)
...
...
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...
Ordinarily, if a good number of participants here wanted a question,
that
...
...
should be enough to include it. Here, a majority of those who voted on
the
...
...
issue of this particular question wanted the question included. That
should
...
...
have conclusively stopped the debate. But no, not so. There is
persistent effort
...
...
to censor this question. And this in a process that is advertised as
open,
...
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transparent, collaborative, and what not. There is something very
basically
...
...
wrong here.
...
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...
parminder
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...
On Thursday 22 December 2016 07:20 PM, Kavouss Arasteh wrote:
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Dear John.
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...
Dear Parminder,
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...
It is difficult for me to conclude on any solution between the lines of
your
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...
discussion.
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...
Could any of you kindly give a resume of the  exchanged views.
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We need to look for some compromise solution knowing that some hard
...
...
liners like x and y insist to impose their objections to send Q4.I
continue to
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object to all questions until all 4 are agreed Nothing is agreed untill
everything
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...
is agreed this is a  Global multistakholder Group discussion and NOT
North
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American Sub-Region multistakholder Group dominated by certain
individuals
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...
Regards Kavouss
...
...
...
...
2016-12-22 13:06 GMT+01:00 parminder
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<parminder@itforchange.net<mailto:parminder@itforchange.net>>:
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...
...
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On Tuesday 20 December 2016 08:37 PM, John Laprise wrote:
...
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"To turn ones face away and say, nothing can be done here, to evolve our
...
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democratic international systems, is to vote for a status quo which
serves
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...
some, but not others."
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...
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Rather, it is an acknowledgement of reality.
...
...
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Apologies for appearing to be flippant, but isnt that what every status
quo-ist
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says.
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Rule of law is neither globally strong nor evenly distributed. I can
imagine a
...
...
world in which the way forward you describe is plausible but,
regrettably, it is
...
...
not the one we live in. Other systems need strengthening and in some
cases
...
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even existence before the way forward is open. It's not a vote for the
status
...
...
quo but a recognition of path dependency.
...
...
...
...
I am not asking for a violent deviation from the path - both options
that I
...
...
propose, a new international law and immunity under existing US Act
carries
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...
forward the path-dependency, and completely safeguard the existing
...
...
structures and processes of ICANN, the system I think you allude to as
...
...
requiring strengthening. What I propose in fact further strengthens it,
to a
...
...
considerable extent. The ICANN system's current jurisdictional
oversight by a
...
...
single country is its biggest weak point in terms of international
legitimacy. ( A
...
...
point, unfortunately USians here seem not able to see and sympathise
with.)
...
...
Imagine an ICANN with immunity from US jurisdiction; how much
legitimacy,
...
...
and thus strength, it adds to the system.
...
...
...
...
...
...
Thanks for the back rounder Parminder. It was, along with some parallel
...
...
research, quite helpful.
...
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Thanks John, you are welcome.
...
...
...
...
The problem remains however that there is no analogous organization to
...
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ICANN merely in terms of its contractual authority.
...
...
...
...
Firstly, if we are hoping that a fully-developed, well-rounded
solution, with
...
...
everything fully covered by enough exact precedents, to this complex
but very
...
...
genuine problem, will simply one day drop in our laps, I assure you
that this is
...
...
not going to happen. We have to work for it, join the dots, take risks,
make
...
...
innovations, and so on. The point is, who is losing and gaining what
from the
...
...
present dispensation, and who is willing to do what is required to do.
...
...
...
...
Next, I see that organisations like International Fertilizer and
Development
...
...
Centre, which we cited as an example of an NPO given jurisdictional
...
...
immunity, also does run many projects worldwide. Any such project would
...
...
require use of a legal status, entering contracts, and so on.... We
just need to
...
...
look into it. But if we close our eyes, and simply refuse to explore
options, we
...
...
are not going to get anywhere. I am not saying this example will be an
exact fit
...
...
for our requirement, but we need to see what is possible, and innovate
and
...
...
evolve over it.
...
...
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...
I'd also add that many of the benefits of the act are at the discretion
of the US
...
...
Secretary of State and can be revoked.
...
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Yes, which is why immunity under US Act is less sustainable option than
...
...
international law based immunity. But still better than the present
condition.
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In the recent civil society statement on
...
...
jurisdiction<
http://www.itforchange.net/sites/default/files/Jurisdiction%20of
...
...
%20ICANN.pdf>, we also suggested a method whereby any such withdrawal of
...
...
immunity can be made difficult/ ineffectual (see option 3 in the end).
...
...
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...
The proposed jurisdictional immunity would also require all governments
to
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sign off on such status, given ICANN's reach.
...
...
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I dont see why so. Only US gov needs to agree.
...
...
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...
I know that there is a significant literature on international compacts
and law.
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Given the often decades long time frames for the passage and acceptance
of
...
...
such law, the Internet as we know it is unlikely to exist by the time
it comes
...
...
into force.
...
...
...
...
These are weak excuses. It can be done in 6 months. But in any case, if
it
...
...
satisfies those who want to move towards international jurisdiction,
what do
...
...
you lose in allowing to set in motion the process, esp if you think it
would take
...
...
forever to do anything. Let those who want have it. In the interim,
status quo
...
...
would stay.
...
...
...
...
...
...
To your question about why we do not discuss jurisdictional immunity
under
...
...
US law: it is because the domestic political reality of the situation
makes such
...
...
an eventuality so remote as to be hypothetical.
...
...
...
...
The same domestic situation makes the continuation of ICANN under US
...
...
jurisdiction even less tenable.
...
...
...
...
This brings me to a very important point: the job of CCWG, working on
behalf
...
...
of the global community, is not to second guess what US gov will accept
or
...
...
not (unfortunately, that is what it has mostly done). If this was its
real task, we
...
...
as well may let US gov do what it may, instead of providing them the
cover of
...
...
legitimacy of the supposed will of the so called 'global community'
which is
...
...
what this process does. Our job is to recommend what we think in is best
...
...
global interest, and is ordinarily plausible to do. This is what our
job is, and we
...
...
must just do that. Let US gov do its job - accept our recs or not. That
burden is
...
...
upon them - let s not take up their burden. This aspect of the work of
the
...
...
"community" groups involved in the transition process has always greatly
...
...
bothered me. We must have clarity about - on whose behalf are we
working (i
...
...
think, for the global community, but you can clarify) and what our recs
must
...
...
be based on (I think, on our understanding of what is best for the
global
...
...
community, and not what we think US gov likes and would agree to, and
what
...
...
not, but again you can clarify)
...
...
...
...
...
...
The described quest is admirable but IMO is a non-starter. Conditions
do not
...
...
exist presently to make it a possible.
...
...
...
...
We are part of once in decades constitutional process about ICANN's
...
...
structures. If it is not now, it is never.
...
...
...
...
parminder
...
...
...
...
Best regards,
...
...
...
...
John Laprise, Ph.D.
...
...
Consulting Scholar
...
...
...
...
<http://www.linkedin.com/in/jplaprise/><;
http://www.linkedin.com/in/jplapri
...
...
se/>http://www.linkedin.com/in/jplaprise/
...
...
...
...
...
...
...
...
From: parminder
...
...
[<mailto:parminder@itforchange.net>mailto:parminder@itforchange.net]
...
...
Sent: Tuesday, December 20, 2016 2:57 AM
...
...
To: John Laprise <mailto:jlaprise@gmail.com>
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...
<jlaprise@gmail.com><mailto:jlaprise@gmail.com>; accountability-cross-
...
...
community@icann.org<mailto:accountability-cross-community@icann.org>
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...
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
Results
...
...
...
...
On Monday 19 December 2016 08:14 PM, John Laprise wrote:
...
...
...
...
Possibilities of jurisdictional immunity? Could you please provide
examples of
...
...
organizations that enjoy such.
...
...
...
...
John
...
...
The most well known case of jurisdictional immunity is of course for
...
...
organisations incorporated under international law. Unlike what has been
...
...
argued here variously, although international law has to be made by
...
...
governments through treaties etc that says nothing about the actual
...
...
governance structure of the concerned organisation, ICANN in this case.
...
...
International law can, to take an extreme case, hand over complete
...
...
governance of a body created/ incorporated under international law to
you
...
...
and me... Nothing circumscribes how international law is written as
long as all
...
...
countries agree to it. It is entirely possible, and I think extremely
plausible,
...
...
that they would agree to write in such law the exact governance
structure of
...
...
ICANN as it is at present. Right now too, ICANN exists by and under the
...
...
strength of its law of incorporation which is US law. In the scenario I
present,
...
...
it would just be international law instead of US law. Yes, there are
matters to
...
...
worked out in this regard, but if democracy and self-determination of
all
...
...
people, equally, is of any importance at all, we can go through the
process,
...
...
including doing the needed innovations as needed. The current
international
...
...
system was not handed over to us by God, it was evolved by people like
us,
...
...
who responded appropriately to newer and newer global challenges, as the
...
...
one that faces us now. To turn ones face away and say, nothing can be
done
...
...
here, to evolve our democratic international systems, is to vote for a
status
...
...
quo which serves some, but not others. And these are the others that are
...
...
protesting here, and seeking appropriate change. It is a political
issue, lets not
...
...
treat it as a technical issue, of what is argued to be difficult or too
...
...
"troublesome" to pursue.
...
...
...
...
Next, even without going the international law route, as has been said
many
...
...
times earlier here, US law allows even non profits to be given
jurisdictional
...
...
immunity. The concerned law is the United States International
Organisations
...
...
Immunities Act<https://archive.icann.org/en/psc/annex9.pdf> . And an
...
...
example of a US non-profit being given jurisdiction immunity under it is
...
...
International Fertilizer and Development Center. This has been
discussed in a
...
...
report commissioned by ICANN itself which can be found at
...
...
https://archive.icann.org/en/psc/corell-24aug06.html .
...
...
...
...
I have been unable to understand why can we not agree to even
jurisdictional
...
...
immunity under existing US law, which keeps ICANN in the US, preserves
its
...
...
existing structures, and does go considerable way to address the
concerns
...
...
about those who are concerned about application of US public law on
ICANN,
...
...
and what it may mean for its global governance work.
...
...
...
...
The argument is advanced that this may affect the operation of the newly
...
...
instituted community accountability mechanism. I dont think this is not
true.
...
...
This mechanism is a matter of internal ICANN governance system, which
is a
...
...
'private' arrangement with choice of law available to it. It simply has
to be put
...
...
in ICANN bylaws that ICANN governance processes will be subject to
...
...
adjudication by Californian courts as present. That should do. Of
course the
...
...
mentioned International Fertilizer and Development Centre also must be
...
...
existing with some governance systems, that admit of external
adjudication,
...
...
even as it enjoys the benefit of jurisdictional immunity from US public
laws.
...
...
Such immunity always only pertains to the policy and such international
core
...
...
activities of the concerned organisation, and associated matters. It
would not,
...
...
for instance, extend to actual crime being committed by its personnel
on its
...
...
premises. All such matters of various distinctions get taken care of
when we
...
...
enter the actual processes of such immunities etc. Right now, the issue
is only
...
...
to decide to go down the route, or not.
...
...
...
...
parminder
...
...
...
...
...
...
...
...
Best regards,
...
...
...
...
John Laprise, Ph.D.
...
...
Consulting Scholar
...
...
...
...
http://www.linkedin.com/in/jplaprise/
...
...
...
...
...
...
...
...
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: Monday, December 19, 2016 7:10 AM
...
...
To:
accountability-cross-community@icann.org<mailto:accountability-cross-
...
...
community@icann.org>
...
...
Subject: Re: [CCWG-ACCT] Jurisdiction Proposed Questions and Poll
Results
...
...
...
...
...
...
...
...
...
...
On Saturday 17 December 2016 12:40 AM, Mueller, Milton L wrote:
...
...
...
...
SNIP
...
...
...
...
John Laprise's wording was much, much better:
...
...
...
...
"What are the advantages or disadvantages, if any, relating to changing
...
...
ICANN's jurisdiction*, particularly with regard to the actual operation
of
...
...
ICANN's policies and accountability mechanisms?"
...
...
...
...
This formulation does not include possibilities of jurisdictional
immunity.
...
...
...
...
Something like
...
...
...
...
...
...
...
...
...
...
"What are the advantages or disadvantages, if any, relating to changing
...
...
ICANN's jurisdiction*, or providing possible jurisdictional immunity,
...
...
particularly with regard to the actual operation of ICANN's policies and
...
...
accountability mechanisms?"
...
...
...
...
would be better.
...
...
...
...
parminder
...
...
...
...
...
...
...
...
...
...
...
...
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...
...
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...
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...
...
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