Dear Raphael,

Allow me to respond to the 2 questions in two separate emails.

First


1. I do not see what you would want to prevent with your proposed immunity: "such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy including of "no legislation/ policy without representation". These principles are recognised by UN instruments as human rights, and most countries today including the US are built over them."

and its associated point

So yes this brings me back to the first point: what kind of situations are you afraid of? The submissions you link convey a general sense of a threat coming from "US laws" without pinpointing what ICANN was not able to do by virtue of being in the US (to the exclusion of any other factor). I believe that US corporations law is probably one of the most liberal in the world and in that sense, it leaves a lot to ICANN to decide for itself rather than dictating what it should do.

First, my issues are not with US private law - like the US corporation law - that you mention but with US public law, the whole range of the legal powers of the US state - its courts, its legislature, its executive, and its many regulatory bodies. I simply cant understand why you and some others here refuse to admit that every state, in this case the US, has powers overs thousands of aspects of every private body and every person's life within the territorial boundaries of that state. The submissions that I pointed ( i hope you did see them, reposting them at the end of this email*) to give some illustrative examples of such powers and their likely use with a body like ICANN, but there are thousands others. Now, if you simply refuse to accept this obvious and clear-as-daylight fact of our contemporary political organisation I dont know what can I do about it. But, excuse me to say, this may begin to tilt dangerously towards some kind of alt-truth -- a complete denial of well known truth, and created another in its place, here, the fantasy that somehow the US state does not have thousands of kinds of powers over ICANN as a US based private body.

To argue it another way, if such territorial powers were not there with the state where an organisation is physically based there would have been no concept of immunity for international bodies, something you would accept does exist in this world that you and I inhabit . To further extend this rather needless argument, if indeed the US state has no such powers over ICANN, why not just indulge the stupid paranoid kinds like me and we all agree to seek immunity under the US International Organisations Immunity Act, which as per what you seem to be arguing will be immunity from nothing, bec there is nothing to get immunity from, which should therefore be not a problem for anyone.

parminder

*https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf
and https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pdf


2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net>:

Issue:

Various branches and agencies of the United States of America - from judicial and legislative to executive, including its many regulatory agencies - have exclusive (like no other country's) direct legal remit and power over ICANN, as a US non-profit organisation, with respect to practically every aspect that can conceivably be affected by state power (their range is so enormous that it is vain to begin listing them). These agencies/ y can and do exercise them at any time in pursuance of US law and policies, that have the primary purpose to uphold US public interest and US constitution. Many examples of such powers and their possible use have been given in various public submissions to this group, including this one , and also this. Since ICANN is supposed to make policies and implement them with regard to the global DNS in the global public interest and not just US public interest, such unilateral availability and use of legal state power with one country, the US, over ICANN is untenable, and goes against basic principles of democracy including of "no legislation/ policy without representation". These principles are recognised by UN instruments as human rights, and most countries today including the US are built over them.

Proposed solution:

ICANN be granted immunity under the International Organisations Immunities Act of the US. This immunity should be tailored/customised in a manner that ICANN still remains subject to non profit law of the state of California under which it is registered, and its organisational processes function, and other such US laws and institutions that are strictly required for ICANN to be able to satisfactorily carry out its organisational, policy and technical functions (an assessment with respect to which should be undertaken asap).


Additional notes:

If I may add, this has been "THE" jurisdiction question since the WSIS days if not earlier ( actually since the time ICANN was formed). Whether or not we are able to agree to recommending any solution to this jurisdiction question, it will be an unacceptable travesty of facts and history if this group does not accept this as an important, if not "THE", jurisdiction question in relation to ICANN.

Whether or not this group is able to contribute to global public interest by making any positive progress on the question of ICANN's jurisdiction, following the principles of good governance and democracy, let it not regress and actually serve to obfuscate what is seen and known as the "ICANN's jurisdiction" question by everyone, by the global public at large. (For instance, in ICANN's own internal discussions like when the ICANN chair commissioned this report on the jurisdiction issue).

If we can accept that this is a key jurisdiction (even if not "THE") question, but are not able to agree on a proposed solution, let us just write that in our report. But let us not contribute to alt-truth, a very dangerous phenomenon that is often spoke of nowadays. Both as a group, and individually as responsible persons - given an important global political responsibility -- we owe at least that much to ourselves.

As for myself, and the groups that I work with, we will stand resolutely till the end in the path of any such synthesis of artificial reality - when a global group tasked to address the decades old democratic question of unilateral jurisdiction of one country over the global governance body, ICANN, comes up with a report that asserts that this is not a jurisdiction issue at all, or at least not an important one. 

parminder







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Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
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