Parminder,
I agree that we should concentrate on assessing
the jurisdictional questions of the status quo and possible
problems, also for worst-cases.
Incorporation of ICANN: I am studying it in
detail, also in dialogue with experts in the Austrian
Foreign Ministry. ICANN status is special that cannot be
fulfilled by other jurisdictions so far. ICANN needs a
strong seat state supporting its special role (difficult to
match the USA) and also a legal system willing to interfere
in ICANN’s policies if accountability requirements are not
met. I do not see a seat state willing to do that. It would
easily destroy its reputation as a supporter but also
guarantor of the autonomy of the organization (a highly
relevant concern of any international organization). Thus,
it is good to study it – from an academic point of view –
but also accept that it is highly impractical at the moment.
As long as the present system works, we should keep it –
with a b-plan if the present arrangement does not work.
Best, Erich Schweighofer
All
I
myself remain very concerned about the lack of progress by
this group. However, this wont be addressed by pushing back
formulations that have been made on at least one of the more
important issues on the table. Why do not those who consider
other issues as important come out with clear statement of
problem, possible options to solve them, and the possible
decision points for the group, as some Indian groups
supported by two of the largest global networks of civil
society organisations working in the IG area has done for
the area of 'public law jurisdiction' or jurisdiction of
incorporation? Do that rather than lament why one set of
actors are bring a particular set of concerns and likely
resolutions to the table.
I
see three key areas that this group must deal with
1.
Issue of incorporation of ICANN, or application of US public
law on ICANN, and its implication on ICANN policy work
2.
Issue of applicable jurisdictions on private law related to
ICANN's internal working (that would also cover
accountability mechanisms) and various contracts that it
enters into
3.
Issue of application of public law of other countries on
ICANN where ICANN may have presence
4.
pl add if any
Why
does not anyone, or a group here, formulate the issue, the
real concerns involved, possible options to pursue with
regard to recommendations that this group can make. That
would help us make progress.
We
can agree to simultaneously move discussion forward on all
the three above - in three separate threads. Some may
quickly be agreed to, others may lead to longer discussions.
That is the nature of the beast... But lets keep moving.
parminder
Nothing
has been discarded beforehand. Parminder's idea of
moving ICANN out of California (thus deconstructing WS1
Accountability mechanisms which are built upon on
California law and thus nullifying ICANN's CEO's
testimony to the US Senate saying it wouldn't happen)
has been given an enormous amount of attention already.
In fact, it has been given so much attention that we
really haven't moved very far along on the real work of
this group, namely, looking at how ICANN's jurisdiction
effects the contractual framework that binds ICANN,
registries, registrars, and registrants together. Not
being desirous to endlessly discuss a subject to the
detriment of all the other subjects we need to get to is
not the same thing as discarding something beforehand.
Thanks!
--------
Original Message --------
Subject: Re: [Ws2-jurisdiction] [CCWG-ACCT] Fwd:
ICANN's US jurisdiction
From: Pedro Ivo Ferraz da Silva <pedro.ivo@itamaraty.gov.br>
Date: Tue, November 15, 2016 4:37 am
To: "ws2-jurisdiction@icann.org"
<ws2-jurisdiction@icann.org>
Dear
Parminder,
Thank you very much for this contribution. I believe
it raises important points about the debate around
jurisdiction and should therefore be taken to the
discussions in the WS2 subgroup.
Contrary to what has been stated by other
colleagues, I believe the paper you forwarded brings
in new and interesting ideas that are worth
evaluating, although I would have concerns with some
of them.
Anyway, my understanding is that we are currently in
a problem assessment phase, where no possible
recommendations/alternatives should be discarded
beforehand.
Enviado
do meu smartphone Samsung Galaxy.
--------
Mensagem original --------
Data:
13/11/16 17:59 (GMT-03:00)
Assunto:
Re: [CCWG-ACCT] Fwd: ICANN's US jurisdiction
While
I don’t support the statement as a whole, I
think your dismissal is too indiscriminate.
I,
too, would completely reject Parminder’s
discredited argument that setting rules for a
TLD named “pharmacy” will result in the global
imposition of rules for the entire
pharmaceutical sector (or book, or beauty
parlors, etc.). This absurdly exaggerates the
influence of TLD registries. Even if it were not
based on a false assumption, the idea that
because ICANN is incorporated in the US the
rules its policy processes and registry
operators adopt for these TLDs are somehow
controlled by the US government is simply false.
I
also think that option #1 (incorporating ICANN
under international law instead of California)
was soundly rejected in WS1 and in fact is not a
feasible or even coherently formulated option.
Option
#2, on the other hand, has some merit and
certain aspects of it are worth considering. I
see no fallacy in the statement,
“With
three different jurisdictions over these
complementary functions, the possibility of any
single one being … able to interfere in ICANN's
global governance role will be minimized.” I
think this could be considered a prudent
political risk mitigation strategy. We are not
going to change ICANN’s place of incorporation,
and it is unlikely that we will change PTI’s
place of incorporation so soon after we have
stood up the new corporation. But it is not
impractical to consider jurisdictional diversity
the next time the RZM contract is renewed. (Note
that I am characterizing an alternate
jurisdiction as a ‘consideration’ and not as a
‘requirement.’ And longer term, as PTI matures
they might also take into consideration the
possibility of another jurisdiction. The value
of this is debatable, given that PTI is a
subsidiary of ICANN, but the possibility of
separation was deliberately built into the
design of the new arrangements. So in any
separation process, jurisdictional diversity
might be taken into account.
The
attachment you shared seems to be a
compilation of some of the really terrible
ideas which have shown up on this List from
time to time. Since these terrible ideas
have already been addressed and addressed
and addressed on this List, I'm not sure
that re-addressing them again at this time
would prove useful. However, I didn't want
anyone to think that silence (to the latest
round of trying to push for the unraveling
of WS1) was somehow assent. It isn't. We
just really have to get on with the real
work of this group and stop constantly
reopening and re-addressing all of these
fringe ideas.
I
thought this may be relevant to those on
this list. Regard, parminder
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Date:
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Wed, 9 Nov 2016
07:23:40 +0530
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All
As you know, the issue of jurisdiction
of ICANN is under consideration at
ICANN's community process (in the
accountability track where there is a
sub group discussing this issue). ICANN
is currently meeting in Hyderabad,
India, from 3rd to 9th November.
Today, on the last day of ICANN's
Hyderabad meeting, the enclosed
statement was issued by key Indian civil
society organisations engaged with
Internet governance issues, supported by
two key global networks involved in this
area. The statement expresses the urgent
need for transiting ICANN from being
under the jurisdiction of one country,
presenting the rationale of why this is
important to do. It also lists some
possible options of doing so, towards
beginning a serious action-oriented
deliberation on this very important
matter. Unlike what is often understood,
the jurisdiction issue is not just a
matter of sovereign prestige and self
respect of the states but concerns vital
matters impacting people's rights. This
is especially so as the society gets
more and more digitised in all areas.
We welcome comments and feedback.
The statement has been issued by the
following Indian civil society
organisations.
Software Freedom Law
Center India, New Delhi
It
is supported by the following global
networks:
We
will soon expand this effort to enlist
more global support.
_______________________________________________
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Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction