ISSUE - unilateral jurisdiction of one country over ICANN
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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
Dear Parminder, Could you precise two points of your submission: 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."* 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. 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. 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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
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=... and https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear Paul Thanks for your engagement. responses below. On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach?
In fact, I really cannot. And I am not being flippant, nor ignorant. I am involved in top management of an Indian NGO, and if you ask me a list of Indian laws that apply to the NGO I really wont be able to make a list. Practically every law does, and new ones can be made any time. And there are emergency/ extra-ordinary time/ contexts provisions, where new obligations and checks could kick in. They are there in every country, and I am sure also in the US. There must be executive emergency powers in the US say to deal with wartime. BTW, President Obama almost signed an emergency Internet infrastructure related bill, which was popularly called as the kill switch bill, and now we have a US President that has an official "America first" policy, so, who knows! Anyway, I got distracted to talk about state powers in extra-ordinary times, but there is a big enough problem in normal times. State functions to order society as per some principles and laws supposed to be representing popular will (in democracies). So, I really do not know how to answer your question. All such laws in the US represent US public will and not global will, and we -- the non US public -- have no desire to be governed by US law (as at one time you USians rejected governance by English law) and would like to have the global governance of DNS to be immune from all US laws, other than those that we agree to submit to for the sake of practical functioning of ICANN, it being located in the US. There is a very huge literature on host country agreements for international organisations addressing this precise question. I keep referring to this document, but let me again do it. This report aptly named "Educational Material to Assist ICANN in Deciding What Status The Corporation <https://archive.icann.org/en/psc/corell-24aug06.html>Should Aim for as A Private International Entity in Its Host Country <https://archive.icann.org/en/psc/corell-24aug06.html>" was commissioned by ICANN for precisely this issue, and I am not sure why an ICANN WG dealing with jurisdiction issue refuses to refer to it or discuss it. In this, the commissioned expert gives examples of a number of non inter-gov organisations that have been granted immunity under US International Organisations Immunity Act, like Global Fund to Fight Aids, Tuberculosis and Malaria , /International Fertilizer and Development Center (IFDC), International Food Policy Research Institute (IFPRI), Inter-American Statistical Institute ( IASI), International Union for Conservation of Nature and Natural Resources (ICUN)/ At least some of them I understand are NPOs under US law, and the fact that they continue to be NPOs working under such law even with immunity under the said US Act shows that immunities under the Act can be so tailored. The referred ICANN commissioned report says that it presents some material about the organisations cited as examples and that "the ICANN team will be able to quickly find additional relevant material." For some reason though, ICANN, and this group, has consistently refused to do so. I have mentioned this report several times, and a few times asked the WG chair to seek expert legal advice on the question of how a US registered NPO can get immunity under the mentioned act while still continuing to function under a US NPO legislation. But the Chair has consistently refused to even acknowledge that request. A few times my request was also supported by others. In the circumstances, it is not possible for me to do all the legal work myself to substantiate my case. This report of an ICANN WG contains detailed comments by an expert <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf> on various forms of restricted, tailored etc immunities. I have shared this report too a few times earlier. I do not see any problem for ICANN to get immunity under the International Organisations Immunities Act even while it remains subject to california NPO or any other law strictly required to cally out its organisational and technical functions. What such functions and relevant laws are is something for ICANN legal and outside lawyers to tell us. What is important here is that we cannot work on a positive list of what laws we need exemption from, that never works, and I don think there is either any dependent or process for that. We have to work on a negative list, of such laws that we do not want exemption, like California non profit law and any such other that may be required. Hope I make myself clear, but happy to clarify. I will respond to your second question on a separate email. regards, parminder
And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN *less *accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------ *De:* ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@ icann.org] em nome de parminder [parminder@itforchange.net] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search= 0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of * parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing listWs2-jurisdiction@icann.orghttps://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter ….. If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance. And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Raphaël BEAUREGARD-LACROIX Sent: Saturday, August 19, 2017 8:46 AM To: Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter …..
If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance.
Dear Paul We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts.
And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t.
Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Raphaël BEAUREGARD-LACROIX *Sent:* Saturday, August 19, 2017 8:46 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Parminder Of course we aren’t inventing the concept of host country agreements. But those are specific agreements with specific provisions -- Are you saying that the WIPO agreement in Switzerland is the model for what we should have in the US for ICANN? If so, say so directly. If not, then tell me what you think should be in the agreement. I am happy to stop discussing general propositions it you will – which is why I asked for specifics. OFAC? Yes, I understand that. What else? Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, August 19, 2017 10:56 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote: Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter ….. If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance. Dear Paul We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts. And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t. Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Raphaël BEAUREGARD-LACROIX Sent: Saturday, August 19, 2017 8:46 AM To: Thiago Braz Jardim Oliveira <mailto:thiago.jardim@itamaraty.gov.br> <thiago.jardim@itamaraty.gov.br> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:
Dear Parminder
Of course we aren’t inventing the concept of host country agreements. But those are specific agreements with specific provisions -- Are you saying that the WIPO agreement in Switzerland is the model for what we should have in the US for ICANN? If so, say so directly. If not, then tell me what you think should be in the agreement.
Dear Paul, I have always been as direct as possible. Have said it several times, as per the report that I have been citing several times <https://archive.icann.org/en/psc/corell-24aug06.html>, and since we are looking here at (1) immunity for an organisation that is not a treaty organisation under international law but a US NPO, and (2) immunity from the US jurisdiction and not the Swiss, the model under which say the International Fertilizer Development Centre, a US based NPO, has been provided immunity under the UN International Organisations Immunity Act, in my view, will be the best one to look at. I am not a lawyer, neither I am US based, and have limited access to info from within the US. But we need more information in the above regard, an exhortation also made by the author of the cited ICANN report. I have also sought such information earlier in this group, but to no avail. Unfortunately, it seems that access to information is not available in a neutral way to this group to function adequately to be able to fulfil its mandate, which is, I must remind, about accountability of ICANN to the global public and not just the US. Response to your below question in a separate email. parminder
I am happy to stop discussing general propositions it you will – which is why I asked for specifics. OFAC? Yes, I understand that. What else?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, August 19, 2017 10:56 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter …..
If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance.
Dear Paul
We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts.
And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t.
Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference.
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Raphaël BEAUREGARD-LACROIX *Sent:* Saturday, August 19, 2017 8:46 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@itamaraty.gov.br> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
I appreciate the thought exercise but the practical political reality in the US is that Congress would never pass such legislation nor would President Trump sign such a bill. Now, back to reality... On Sat, Aug 19, 2017, 10:41 PM parminder <parminder@itforchange.net> wrote:
On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:
Dear Parminder
Of course we aren’t inventing the concept of host country agreements. But those are specific agreements with specific provisions -- Are you saying that the WIPO agreement in Switzerland is the model for what we should have in the US for ICANN? If so, say so directly. If not, then tell me what you think should be in the agreement.
Dear Paul, I have always been as direct as possible. Have said it several times,
as per the report that I have been citing several times <https://archive.icann.org/en/psc/corell-24aug06.html>,
and since we are looking here at (1) immunity for an organisation that is not a treaty organisation under international law but a US NPO, and (2) immunity from the US jurisdiction and not the Swiss,
the model under which say the International Fertilizer Development Centre, a US based NPO, has been provided immunity under the UN International Organisations Immunity Act,
in my view, will be the best one to look at.
I am not a lawyer, neither I am US based, and have limited access to info from within the US. But we need more information in the above regard, an exhortation also made by the author of the cited ICANN report. I have also sought such information earlier in this group, but to no avail. Unfortunately, it seems that access to information is not available in a neutral way to this group to function adequately to be able to fulfil its mandate, which is, I must remind, about accountability of ICANN to the global public and not just the US.
Response to your below question in a separate email.
parminder
I am happy to stop discussing general propositions it you will – which is why I asked for specifics. OFAC? Yes, I understand that. What else?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Saturday, August 19, 2017 10:56 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter …..
If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance.
Dear Paul
We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts.
And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t.
Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference.
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *Raphaël BEAUREGARD-LACROIX *Sent:* Saturday, August 19, 2017 8:46 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> <thiago.jardim@itamaraty.gov.br> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN *less *accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira < thiago.jardim@itamaraty.gov.br>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------
*De:* ws2-jurisdiction-bounces@icann.org [ ws2-jurisdiction-bounces@icann.org] em nome de parminder [ parminder@itforchange.net] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org [ mailto:ws2-jurisdiction-bounces@icann.org <ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
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
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
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
On Sunday 20 August 2017 09:24 AM, John Laprise wrote:
I appreciate the thought exercise
perhaps you wanted to say, democratic exercise, or democratic thinking and imaginary ... Nothing of consequence, my friend, ever got achieved without imagination and vision.
but the practical political reality in the US is that Congress would never pass such legislation nor would President Trump sign such a bill. Now, back to reality...
John, you actually have come to an extremely important point. Thanks. Yes, President Trump and Congress are very unlikely to pass it. And so? Is our job to second guess US government on this issue, or is it to represent global public to provide the most appropriate global governance architecture for ICANN? My question is not rhetorical, it is real. I need to know. let us be very clear about what we are, and our mandate. Are we advisers to US gov on ICANN governance, or are we representatives of the global public here? Yes, if advisers, our job is to second guess US gov's intentions and interests. But if reps of global public, it is to find the most appropriate, including democratic, governance model for ICANN, the body undertaking global governance of the global DNS. And find such models no doubt within realms of practicality, but that does not include undue subjection to any outside power. If indeed, we think that immunity under the said US act is the best democratic governance option for ICANN, it is our job to recommend it. What happens when it is refused. Well, we as reps of global public in matters related to ICANN have other options to assert ourselves. I mean first we need to decide to assert ourselves. Some such options are touched upon in this doc <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>, but I am happy to discuss them in greater elaboration. (Let me undertake an indulgence in pursuance of my motto of "speaking to power", an indulgence perhaps I should not take on this lazy sunday morning, but....) No, my friend, it is not the US congress or President Trump blocking our progress towards most appropriate, equitable and democratic solutions to a key ICANN governance issue. That problem will come later... Let me be blunt.... It is "you folks" who benefit from and derive various kinds of powers from the status quo who are blocking it (my apologies at a personal level for this political comment, but that is the truth). It is your complacence of sitting in the US enjoying legal and political protections, and otherwise in the ICANN system deriving various advantages, that is coming in the way of what is something rather simple, straight-forward and obvious good and the right thing. And it is your lack of feeling, empathy and sense of justice with respect to other people in other parts of the world, not enjoying the protection of the US state, and benefits of the ICANN system, that is blocking it. The problem of congress and president Trump ( who btw is democratically elected to enforce polices that he may) will come, but that is later. Right now, that is not the problem. The problem is "we". We are not some lay people on the street to make comments of hopelessness about the future - like US gov would never allow something -- we are reps of the global public, given a very important, even historic, role to recommend and accomplish something, that which we find in the best global interest. Can we begin to take that huge responsibility seriously, and move beyond flippancy., and blocking possible progress in doing something that the global public send us here to do. Substantively, and beyond the rhetoric, I can see no justifiable reason being given by anyone with the least democratic credentials to not explore the straight forward "immunity under the said US act" option, which is a win win for all... The current ICANN system stays exactly as it is, and people's justified apprehensions about the authority of the US over ICANN gets substantially removed. If we recommend that, we will really have done and achieved something, and can be proud to have given back something substantial to the people whom we purport to represent here. parminder
On Sat, Aug 19, 2017, 10:41 PM parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:
Dear Parminder
Of course we aren’t inventing the concept of host country agreements. But those are specific agreements with specific provisions -- Are you saying that the WIPO agreement in Switzerland is the model for what we should have in the US for ICANN? If so, say so directly. If not, then tell me what you think should be in the agreement.
Dear Paul, I have always been as direct as possible. Have said it several times,
as per the report that I have been citing several times <https://archive.icann.org/en/psc/corell-24aug06.html>,
and since we are looking here at (1) immunity for an organisation that is not a treaty organisation under international law but a US NPO, and (2) immunity from the US jurisdiction and not the Swiss,
the model under which say the International Fertilizer Development Centre, a US based NPO, has been provided immunity under the UN International Organisations Immunity Act,
in my view, will be the best one to look at.
I am not a lawyer, neither I am US based, and have limited access to info from within the US. But we need more information in the above regard, an exhortation also made by the author of the cited ICANN report. I have also sought such information earlier in this group, but to no avail. Unfortunately, it seems that access to information is not available in a neutral way to this group to function adequately to be able to fulfil its mandate, which is, I must remind, about accountability of ICANN to the global public and not just the US.
Response to your below question in a separate email.
parminder
I am happy to stop discussing general propositions it you will – which is why I asked for specifics. OFAC? Yes, I understand that. What else?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, August 19, 2017 10:56 AM *To:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter …..
If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance.
Dear Paul
We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts.
And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t.
Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference.
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Raphaël BEAUREGARD-LACROIX *Sent:* Saturday, August 19, 2017 8:46 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@itamaraty.gov.br> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote:
snip ....... I am happy to stop discussing general propositions it you will – which is why I asked for specifics. OFAC? Yes, I understand that. What else?
Again, have provided many examples many times, and repeatedly linked docs, like this <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> and this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> , but happy to present some of them again. Also, I have already clarified that the authority of a state over private persons and organisations within its territory covers thousands of aspects and issues and can never be enumerated as items in a list. Also, new expressions of such authority can manifest at any time, it represents the almost unlimited sovereign power of its citizens, and so on. But you want some examples beyond OFAC, let me offer some. First, is the authority of, and know similar actions of domain name seizure by, US Customs. I'd quote from aJust Net Coalition submission <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>to ICANN also mentioned above. US executive agencies have routinely considered the DNS as a legitimate lever to exercise its coercive powers. Especially for entities outside the US that it seeks to impact, and who are provided DNS service from an entity within the US, it has unhesitatingly employed US jurisdiction over the US based DNS provider to pull the DNS plug on the “erring non US based entities”. Please see the below news reports on hundreds of such cases. https://www.wired.com/2012/03/feds-seize-foreign-sites/ http://opinion.latimes.com/opinionla/2010/11/seizing-domain-names-without-co... ICANN, as a US non profit, is no different than a US-based registry or registrar located in the US, in terms of how a US authority can and will employ it for coercive actions against “errant entities”. Since most entities use a .com, .net, etc domain name, till now the means of enforcement have been through the corresponding registries, mostly Verisign. However, in case of gTLDs operated by a registry outside the US, ICANN alone can provide the means of coercive action – that of disabling the gLTD. There is no question that, as Verisign has so often been forced by US agencies to disable domain names, sooner or later so will ICANN be forced. Doing this just to uphold US law would constitute a constraint on ICANN's responsibility to act in the interest of global Internet community. (quote ends) Can you explain why a prospective application of OFAC over a cctld or gtld is a problem (which I think it very much is) but the likely problems with US Customs seizing a gTLD through ICANN is not (when very symmetrical actions have taken place earlier)? Next, I can point to the problem that can occur coming from the powers and remits of various regulators in the US. FCC, for instance, has right now only forborne its authority over Internet names and numbers. It has statutory authority over telecom numbers, and as per current interpretation of law in the US the Internet is a telecom service (which interpretation may soon be revised, but that precisely is the point, state's role and authority can keep shifting, we can never precisely enumerate it). Earlier FCC had forborne its regulatory authority over the Internet which at a latter point it asserted (the famous net neutrality order). Simiarily, it is entirely possible that FCC vacates its forbearance wrt to Internet names and numbers and decided to exercise regulatory authority over ICANN and its policy decisions, ICANN having no statutory role or authority in the US, and FCC being the official authority in this area. How do you deal with this problem? Next, an sector regulator, say the FDA, can exercise regulatory authority wrt a gLTD that is specific to its sectoral remit, like .health, .pharmacy, etc in FDA's case, and take objections to some exclusion-inclusion principles that may be written in that gTLD's rules, or insist that certain different principles be put there..... It could in the future be done say by transport regulator for .cars, ........ the possibilities are endless. Are we equipped to deal with this problem? Then of course is the oft discussed issue that courts of the US apply US law and even public policy. (You want me to show you a quote from a US judgement to make this elementary and well recognised principle? I can do it.) As a US based private org, ICANN is subject to authority of almost every US court, which will always test any issue primarily from US law and public interest point of view, before anything else. This can very likely be prejudicial to interests outside the US, but that is the nature of any state, its accountability is to its citizens first and foremost.... Such issues are endless... There is no way we can find individual solutions to this endless list of issues with US's unilateral jurisdiction over ICANN. It can only be addressed by seeking immunity, which is tailored to the extent that ICANN is still able to function properly as an organisation within the US. Or it is not addressed at all. And such an option is specifically available through US's International Organisations Immunities Act. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Saturday, August 19, 2017 10:56 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote:
Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter …..
If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance.
Dear Paul
We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts.
And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t.
Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference.
parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Raphaël BEAUREGARD-LACROIX *Sent:* Saturday, August 19, 2017 8:46 AM *To:* Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br> <mailto:thiago.jardim@itamaraty.gov.br> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
So, taking parminder at is word that his objective is to insulate ICANN from the vagaries of US foreign policy, it is clear that none of the laws cited below, except OFAC, are instruments of US foreign policy. OFAC, by its terms, is intended to express a general policy about a foreign nation and as such is fairly characterized as an instrument of US foreign policy. The other laws identified (US customs law, FCC, and sectoral specific regulatory bodies) are not instruments of US foreign policy – they are general expressions of US public law applicable to all corporations (whether foreign or domestic) that operate in the United States. As such they are no different than German customs law, sector specific laws in Brazil and regulatory bodies in India). Immunity from US law in those contexts stands, in my view, on no different footing than immunity from the generally applicable public laws of ever nation in the world. Put another way, the application of those laws to ICANN has nothing to do with its incorporation in the US – they would apply even if ICANN had moved to Switzerland. That renders them, in my view, not suitable candidates for immunity discussions. I think, on the other hand, that Erich’s list is generally more narrow and well focused and would recommend we start there. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: parminder [mailto:parminder@itforchange.net] Sent: Sunday, August 20, 2017 12:06 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN On Saturday 19 August 2017 08:58 PM, Paul Rosenzweig wrote: snip ....... I am happy to stop discussing general propositions it you will – which is why I asked for specifics. OFAC? Yes, I understand that. What else? Again, have provided many examples many times, and repeatedly linked docs, like this <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> and this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> , but happy to present some of them again. Also, I have already clarified that the authority of a state over private persons and organisations within its territory covers thousands of aspects and issues and can never be enumerated as items in a list. Also, new expressions of such authority can manifest at any time, it represents the almost unlimited sovereign power of its citizens, and so on. But you want some examples beyond OFAC, let me offer some. First, is the authority of, and know similar actions of domain name seizure by, US Customs. I'd quote from a Just Net Coalition submission <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> to ICANN also mentioned above. US executive agencies have routinely considered the DNS as a legitimate lever to exercise its coercive powers. Especially for entities outside the US that it seeks to impact, and who are provided DNS service from an entity within the US, it has unhesitatingly employed US jurisdiction over the US based DNS provider to pull the DNS plug on the “erring non US based entities”. Please see the below news reports on hundreds of such cases. https://www.wired.com/2012/03/feds-seize-foreign-sites/ http://opinion.latimes.com/opinionla/2010/11/seizing-domain-names-without-co... ICANN, as a US non profit, is no different than a US-based registry or registrar located in the US, in terms of how a US authority can and will employ it for coercive actions against “errant entities”. Since most entities use a .com, .net, etc domain name, till now the means of enforcement have been through the corresponding registries, mostly Verisign. However, in case of gTLDs operated by a registry outside the US, ICANN alone can provide the means of coercive action – that of disabling the gLTD. There is no question that, as Verisign has so often been forced by US agencies to disable domain names, sooner or later so will ICANN be forced. Doing this just to uphold US law would constitute a constraint on ICANN's responsibility to act in the interest of global Internet community. (quote ends) Can you explain why a prospective application of OFAC over a cctld or gtld is a problem (which I think it very much is) but the likely problems with US Customs seizing a gTLD through ICANN is not (when very symmetrical actions have taken place earlier)? Next, I can point to the problem that can occur coming from the powers and remits of various regulators in the US. FCC, for instance, has right now only forborne its authority over Internet names and numbers. It has statutory authority over telecom numbers, and as per current interpretation of law in the US the Internet is a telecom service (which interpretation may soon be revised, but that precisely is the point, state's role and authority can keep shifting, we can never precisely enumerate it). Earlier FCC had forborne its regulatory authority over the Internet which at a latter point it asserted (the famous net neutrality order). Simiarily, it is entirely possible that FCC vacates its forbearance wrt to Internet names and numbers and decided to exercise regulatory authority over ICANN and its policy decisions, ICANN having no statutory role or authority in the US, and FCC being the official authority in this area. How do you deal with this problem? Next, an sector regulator, say the FDA, can exercise regulatory authority wrt a gLTD that is specific to its sectoral remit, like .health, .pharmacy, etc in FDA's case, and take objections to some exclusion-inclusion principles that may be written in that gTLD's rules, or insist that certain different principles be put there..... It could in the future be done say by transport regulator for .cars, ........ the possibilities are endless. Are we equipped to deal with this problem? Then of course is the oft discussed issue that courts of the US apply US law and even public policy. (You want me to show you a quote from a US judgement to make this elementary and well recognised principle? I can do it.) As a US based private org, ICANN is subject to authority of almost every US court, which will always test any issue primarily from US law and public interest point of view, before anything else. This can very likely be prejudicial to interests outside the US, but that is the nature of any state, its accountability is to its citizens first and foremost.... Such issues are endless... There is no way we can find individual solutions to this endless list of issues with US's unilateral jurisdiction over ICANN. It can only be addressed by seeking immunity, which is tailored to the extent that ICANN is still able to function properly as an organisation within the US. Or it is not addressed at all. And such an option is specifically available through US's International Organisations Immunities Act. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, August 19, 2017 10:56 AM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN On Saturday 19 August 2017 07:02 PM, Paul Rosenzweig wrote: Exactly right Raphael. To cite just a few examples, here are categories of what would be considered public laws in the US from which I assume nobody thinks ICANN should be exempt – criminal law; occupational health and safety law; general public zoning laws relating to urban development. The list is just a starter ….. If I’m wrong – if you really do think that ICANN should be exempt from the criminal laws of the countries where it operates – then perhaps you should say so. I would profoundly disagree, but at least we could discuss substance. Dear Paul We are not inventing host country agreements here. This isnt being proposed for the first time. There is well established set of precedents and established practices in this regard. If a WIPO employee, WIPO having judicial immunity in Switzerland, commits a murder in Geneva, or even a financial fraud, everyone knows what to do and what will happen. Lets come out of this contesting elementary and well-established facts. And to be clear I assume, as well, that nobody thinks that the ICANN officials and institutions in Istanbul and Singapore and wherever else ICANN has offices should be exempt from Turkish or Singaporean law. I certainly don’t. Yes, not in criminal matters. And as I mentioned in an earlier email, it is possible for ICANN to also seek immunity in these jurisdictions as well. But that is not so important, these offices do not make and implement policy. Respective jurisdictions cannot force them to change ICANN's global policies. Even ifthey foolishly get into trying such a thing, ICANN can simply close down its office there and shift to another place, without affecting ICANN global work in any way. But not with US gov's actions or orders against ICANN. That is the difference. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Raphaël BEAUREGARD-LACROIX Sent: Saturday, August 19, 2017 8:46 AM To: Thiago Braz Jardim Oliveira <mailto:thiago.jardim@itamaraty.gov.br> <thiago.jardim@itamaraty.gov.br> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANNs accountability goals) which activities? You say certain of its activities which? And immune from which law? Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago _____ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview =/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p df> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Thiago I am not sure why you are still talking about "immunity" when ICANN's accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community. --MM From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN's accountability goals) ... which activities? You say "certain of its activities" - which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
Dear Milton You are right In describing the impossibility of Blanket immunity But we could explore sub set of that immunity to the extent that could address our very crucial problem that we are facing Let us discuss that together in a healthy environment and collaborative manner Regards Kavouss Sent from my iPhone
On 21 Aug 2017, at 04:56, Mueller, Milton L <milton@gatech.edu> wrote:
Thiago I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community.
--MM
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Paul,
If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals.
As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest.
For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country)
Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2.
Best,
Thiago
De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law?
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Raphael,
Is my "stance of one seeking complete immunity"? No, that's not what I said.
Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others.
Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions.
Best,
Thiago
De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br>: Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
De: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to an ICANN commissioned report which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn - @rbl0012 - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list 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
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn - @rbl0012 - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote:
Thiago
I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community.
We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should. Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder
--MM
*From:* ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Sunday, August 20, 2017 10:17 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Paul,
If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals.
As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest.
For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country)
Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2.
Best,
Thiago
------------------------------------------------------------------------
*De:*Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] *Enviado:* sábado, 19 de agosto de 2017 12:06 *Para:* Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Saturday, August 19, 2017 10:22 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Raphael,
Is my "stance of one seeking complete immunity"? No, that's not what I said.
Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others.
Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions.
Best,
Thiago
------------------------------------------------------------------------
*De:*Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr] *Enviado:* sábado, 19 de agosto de 2017 9:46 *Para:* Thiago Braz Jardim Oliveira *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
And what will ICANN then be immune from?
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
DearAll Some of our respectful and distinguished colleagues may be perfectionist to the extent that they wish to ignore all constructive and possible solutions They raise questions and questions to every suggestions rather than complementing solutions to address their concerns I am sorry to be so transparent and open with advance apology Kavouss Sent from my iPhone
On 21 Aug 2017, at 13:08, parminder <parminder@itforchange.net> wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote: And what will ICANN then be immune from?
Milton put it nicely, to quote, "... from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
I don't understand what your point is, apart from painting me as a perfectionist (I'm actually quite the opposite, but it's not a bad thing to say about me). It's really simply. If this WG ends up proposing that ICANN acquires any form of immunity from suit for any of its acts, or their consequences I, and a number of others (OUTSIDE the US) will strongly oppose that. On 21/08/17 12:19, Arasteh wrote:
DearAll Some of our respectful and distinguished colleagues may be perfectionist to the extent that they wish to ignore all constructive and possible solutions They raise questions and questions to every suggestions rather than complementing solutions to address their concerns I am sorry to be so transparent and open with advance apology Kavouss
Sent from my iPhone
On 21 Aug 2017, at 13:08, parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>> wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto: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
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . . On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . .
Nigel, I will respectfully urge you to give up your cryptic one liners, most of which we from the non english non-western world are unable to understand. Neither does the sarcasm contained therein contribute to what is a very serious exercise of global responsibility that we are trying to undertake here. Please be very clear and explicit in whatever you want to say, and try simple and plain english, with fewer idioms and situated facts rooted in western culture..... As for what I understand from your above remark, if your suggestion is that we, of the non US world, play nice and deferential to every quirk and detail of the US nation and state, let me make it very clear that I have no such intention. I much respect the US nation and state, but then so do I respect every other country, and the democratic rights of their citizens. parminder
On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
It was a genuine comment. If you are making an application for a General Licence you will have to formulate it quite differently than "we don't like the USA foreign policy" since it is the USA that will accept or decline the application. On 21/08/17 12:52, parminder wrote:
On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . .
Nigel, I will respectfully urge you to give up your cryptic one liners, most of which we from the non english non-western world are unable to understand. Neither does the sarcasm contained therein contribute to what is a very serious exercise of global responsibility that we are trying to undertake here. Please be very clear and explicit in whatever you want to say, and try simple and plain english, with fewer idioms and situated facts rooted in western culture.....
As for what I understand from your above remark, if your suggestion is that we, of the non US world, play nice and deferential to every quirk and detail of the US nation and state, let me make it very clear that I have no such intention. I much respect the US nation and state, but then so do I respect every other country, and the democratic rights of their citizens.
parminder
On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
We formulate it as a collateral damage argument. The DNS root is an essential facility to the functioning of the global Internet, and it is better for people in a sanctioned country (most of whom are innocent parties) to have Internet access. Taking away Internet access harms the general public more than it harms the sanction targets.
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 21, 2017 8:29 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
It was a genuine comment.
If you are making an application for a General Licence you will have to formulate it quite differently than "we don't like the USA foreign policy" since it is the USA that will accept or decline the application.
On 21/08/17 12:52, parminder wrote:
On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . .
Nigel, I will respectfully urge you to give up your cryptic one liners, most of which we from the non english non-western world are unable to understand. Neither does the sarcasm contained therein contribute to what is a very serious exercise of global responsibility that we are trying to undertake here. Please be very clear and explicit in whatever you want to say, and try simple and plain english, with fewer idioms and situated facts rooted in western culture.....
As for what I understand from your above remark, if your suggestion is that we, of the non US world, play nice and deferential to every quirk and detail of the US nation and state, let me make it very clear that I have no such intention. I much respect the US nation and state, but then so do I respect every other country, and the democratic rights of their citizens.
parminder
On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Very right, Milton.
From the site of internet users (the remit of ALAC), our goal should non-inference of international entities in ICANN’s core activities. Decisions of ICANN should be stable – after an efficient redress procedure – and not be challenged by States and Supranational Organisations anymore and also – considering ongoing thoughts in international humanitarian law – not subject to sanction regimes.
Each state can decide who runs its ccTLD, respecting rights to property, but too much insistence on sovereignty means also that it may be subject to sanctions. As I mentioned before, immunity in international law is slowly going to be reduced to necessity (a very difficult process); thus pragmatic work on non-interference (e.g. some partial immunity) should be the goal. A general OFAC licence may be the first (and not the last) example. Other important work has to be done in courts that they accept ICANN’s special status. Best, Erich Von: Mueller, Milton L<mailto:milton@gatech.edu> Gesendet: Montag, 21. August 2017 15:02 An: Nigel Roberts<mailto:nigel@channelisles.net>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Betreff: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN We formulate it as a collateral damage argument. The DNS root is an essential facility to the functioning of the global Internet, and it is better for people in a sanctioned country (most of whom are innocent parties) to have Internet access. Taking away Internet access harms the general public more than it harms the sanction targets.
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 21, 2017 8:29 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
It was a genuine comment.
If you are making an application for a General Licence you will have to formulate it quite differently than "we don't like the USA foreign policy" since it is the USA that will accept or decline the application.
On 21/08/17 12:52, parminder wrote:
On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . .
Nigel, I will respectfully urge you to give up your cryptic one liners, most of which we from the non english non-western world are unable to understand. Neither does the sarcasm contained therein contribute to what is a very serious exercise of global responsibility that we are trying to undertake here. Please be very clear and explicit in whatever you want to say, and try simple and plain english, with fewer idioms and situated facts rooted in western culture.....
As for what I understand from your above remark, if your suggestion is that we, of the non US world, play nice and deferential to every quirk and detail of the US nation and state, let me make it very clear that I have no such intention. I much respect the US nation and state, but then so do I respect every other country, and the democratic rights of their citizens.
parminder
On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
On Wednesday 23 August 2017 11:52 AM, Schweighofer Erich wrote:
snip
As I mentioned before, immunity in international law is slowly going to be reduced to necessity (a very difficult process); thus pragmatic work on non-interference (e.g. some partial immunity) should be the goal.
As argued earlier, practically every public law of the US could impact ICANN's global governance processes. It is simply not possible to seek exemptions from each of them one by one. In most cases, there is no process for obtaining exemptions. Therefore, a positive list of legal exemptions will never work for ICANN - -that is in fact a most impractical, or rather impossible, task. Only a negative list of exclusions from a general immunity under the IOI Act will work.
A general OFAC licence may be the first (and not the last) example. Other important work has to be done in courts that they accept ICANN’s special status.
Courts are not going to accept or consider any special status for ICANN unless there is a specific legislative provision to that effect. Otherwise they are supposed to, and will, treat ICANN as just another US non profit, subject to all US laws and state authorities. Incidental facts related to an organisation involved in a particular case, like ICANN, are considered only at a peripheral level after all the provisions and needs of laid down law are considered, and not before them. Do you as a lawyer contradict this political -legal fact? parminder
Best, Erich
*Von: *Mueller, Milton L <mailto:milton@gatech.edu> *Gesendet: *Montag, 21. August 2017 15:02 *An: *Nigel Roberts <mailto:nigel@channelisles.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
We formulate it as a collateral damage argument. The DNS root is an essential facility to the functioning of the global Internet, and it is better for people in a sanctioned country (most of whom are innocent parties) to have Internet access. Taking away Internet access harms the general public more than it harms the sanction targets.
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 21, 2017 8:29 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
It was a genuine comment.
If you are making an application for a General Licence you will have to formulate it quite differently than "we don't like the USA foreign policy" since it is the USA that will accept or decline the application.
On 21/08/17 12:52, parminder wrote:
On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . .
Nigel, I will respectfully urge you to give up your cryptic one liners, most of which we from the non english non-western world are unable to understand. Neither does the sarcasm contained therein contribute to what is a very serious exercise of global responsibility that we are trying to undertake here. Please be very clear and explicit in whatever you want to say, and try simple and plain english, with fewer idioms and situated facts rooted in western
culture.....
As for what I understand from your above remark, if your suggestion is that we, of the non US world, play nice and deferential to every quirk and detail of the US nation and state, let me make it very clear that I have no such intention. I much respect the US nation and state, but then so do I respect every other country, and the democratic rights of their citizens.
parminder
On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Erich I must correct a serious misconception here. The State does not simply "get to decide who runs its ccTLD". That is a simplistic and inaccurate view. (The State is however, a very important participant). Historically, Jon Postel decided. And the delegation was made under international private law (the same system of law that ICANN operates under). The State was not involved, either legally, or, at that time, was even interested, unless it was one of the small number of countries that applied to Jon Postel for the two letter code that matched the ISO-3166 list. In 1994, Jon Postel and several others codified existing policy (such as previous RFCs), and current considerations into the policy document that is now the basis of all ccTLD delegations. It is accepted as such by (most) ccTLDs including most ccTLDs that existed prior to 1994. In that document (RFC 1594), which has been extensively analysed and construed by a WG of the ccNSO including ICANN staff and GAC representatives, the views of "significantly interested parties" are important in delegation decisions. And since the sovereign is quite obviously a Significant Interested Party, this is explicitly noted in the FoI. Other SIPs would have to show why they are are significantly interested in delegation decisions; for the State, it's automatic that they are a SIP. Inded,there may be more than one governmental SIP in some countries' and territories' situations. IANA now fully follows RFC1594 and its agreed interpretation. For more information about the FoI, which the ICANN Board have formally adopted, please see https://ccnso.icann.org/workinggroups/charter-foiwg-07jun11-en.pdf To read the FoI itself, see https://ccnso.icann.org/workinggroups/foi-final-07oct14-en.pdf I would note that any proposal that ICANN act in a way that does not comply with RFC 1994 or the construction (which as said, was arrived at with the participation of different parties, including GAC) would probably cause signficant consitituional issues for ICANN in an area that is now settled. It could be seen as one part of ICANN seeking to override the subsidiarity principle and encroach on the specific constitution of another part. On 23/08/17 07:22, Schweighofer Erich wrote:
Very right, Milton.
From the site of internet users (the remit of ALAC), our goal should non-inference of international entities in ICANN’s core activities. Decisions of ICANN should be stable – after an efficient redress procedure – and not be challenged by States and Supranational Organisations anymore and also – considering ongoing thoughts in international humanitarian law – not subject to sanction regimes.
Each state can decide who runs its ccTLD, respecting rights to property, but too much insistence on sovereignty means also that it may be subject to sanctions.
As I mentioned before, immunity in international law is slowly going to be reduced to necessity (a very difficult process); thus pragmatic work on non-interference (e.g. some partial immunity) should be the goal. A general OFAC licence may be the first (and not the last) example. Other important work has to be done in courts that they accept ICANN’s special status.
Best, Erich
*Von: *Mueller, Milton L <mailto:milton@gatech.edu> *Gesendet: *Montag, 21. August 2017 15:02 *An: *Nigel Roberts <mailto:nigel@channelisles.net>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Betreff: *Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
We formulate it as a collateral damage argument. The DNS root is an essential facility to the functioning of the global Internet, and it is better for people in a sanctioned country (most of whom are innocent parties) to have Internet access. Taking away Internet access harms the general public more than it harms the sanction targets.
-----Original Message----- From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction- bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, August 21, 2017 8:29 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
It was a genuine comment.
If you are making an application for a General Licence you will have to formulate it quite differently than "we don't like the USA foreign policy" since it is the USA that will accept or decline the application.
On 21/08/17 12:52, parminder wrote:
On Monday 21 August 2017 04:58 PM, Nigel Roberts wrote:
I'm sure that formulation will go down well on the OFAC General License application form, and with Ted Cruz . . .
Nigel, I will respectfully urge you to give up your cryptic one liners, most of which we from the non english non-western world are unable to understand. Neither does the sarcasm contained therein contribute to what is a very serious exercise of global responsibility that we are trying to undertake here. Please be very clear and explicit in whatever you want to say, and try simple and plain english, with fewer idioms and situated facts rooted in western culture.....
As for what I understand from your above remark, if your suggestion is that we, of the non US world, play nice and deferential to every quirk and detail of the US nation and state, let me make it very clear that I have no such intention. I much respect the US nation and state, but then so do I respect every other country, and the democratic rights of their citizens.
parminder
On 21/08/17 12:08, parminder wrote:
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
Sorry, but that just doesn’t make any sense legally. It is a good statement of purpose from your perspective, but it isn’t an operational statement. I was heartened to see you try and identify some other provisions of American law that you think ICANN should be immune from (most of which, by the way, do not involve the vagaries of US foreign policy and so contradict your purpose statement – but that is another issue). Let’s focus on that. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Monday, August 21, 2017 7:09 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote: And what will ICANN then be immune from? Milton put it nicely, to quote, "... from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Monday 21 August 2017 07:08 PM, Paul Rosenzweig wrote:
Sorry, but that just doesn’t make any sense legally. It is a good statement of purpose from your perspective, but it isn’t an operational statement. I was heartened to see you try and identify some other provisions of American law that you think ICANN should be immune from (most of which, by the way, do not involve the vagaries of US foreign policy and so contradict your purpose statement – but that is another issue). Let’s focus on that.
I already submitted a list of such provisions of US law, and pointed to further cases in the documents I linked. But I have no response from you on them. For instance, the issue of domain name seizures by US Customs (which btw is foreign policy related although I do not intend to limit myself to explicit foreign policy). For your benefit I will quote once again from another document describing this issue. First, is the authority of, and know similar actions of domain name seizure by, US Customs. I'd quote from aJust Net Coalition submission <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf>to ICANN also mentioned above. US executive agencies have routinely considered the DNS as a legitimate lever to exercise its coercive powers. Especially for entities outside the US that it seeks to impact, and who are provided DNS service from an entity within the US, it has unhesitatingly employed US jurisdiction over the US based DNS provider to pull the DNS plug on the “erring non US based entities”. Please see the below news reports on hundreds of such cases. https://www.wired.com/2012/03/feds-seize-foreign-sites/ http://opinion.latimes.com/opinionla/2010/11/seizing-domain-names-without-co... ICANN, as a US non profit, is no different than a US-based registry or registrar located in the US, in terms of how a US authority can and will employ it for coercive actions against “errant entities”. Since most entities use a .com, .net, etc domain name, till now the means of enforcement have been through the corresponding registries, mostly Verisign. However, in case of gTLDs operated by a registry outside the US, ICANN alone can provide the means of coercive action – that of disabling the gLTD. There is no question that, as Verisign has so often been forced by US agencies to disable domain names, sooner or later so will ICANN be forced. Doing this just to uphold US law would constitute a constraint on ICANN's responsibility to act in the interest of global Internet community. (quote ends) Can you explain why a prospective application of OFAC over a cctld or gtld is a problem (which I think it very much is) but the likely problems with US Customs seizing a gTLD through ICANN is not (when very symmetrical actions have taken place earlier)? This above is from my email dt 20 Aug.... The email discusses other problem areas as well, but lets first deal with this one ... parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Monday, August 21, 2017 7:09 AM *To:* ws2-jurisdiction@icann.org *Subject:* Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
On Monday 21 August 2017 04:29 PM, Nigel Roberts wrote:
And what will ICANN then be immune from?
Milton put it nicely, to quote, "...from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community."
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Milton, Dear All, Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation. There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions. The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible). Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as Helms–Burton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community. Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: segunda-feira, 21 de agosto de 2017 7:45 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote: Thiago I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community. We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should. Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest. ________________________________ De: Thiago Braz Jardim Oliveira Enviado: segunda-feira, 21 de agosto de 2017 9:24 Para: Mueller, Milton L; parminder; ws2-jurisdiction@icann.org Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Milton, Dear All, Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation. There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions. The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible). Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as Helms–Burton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community. Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: segunda-feira, 21 de agosto de 2017 7:45 Para: ws2-jurisdiction@icann.org Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote: Thiago I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community. We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should. Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I think this is an incomplete statement. US enforcement agencies should not interfere with the activities ICANN performs in the global public interests as a means of advancing US foreign policy. Enforcement agencies acting in the normal course (e.g. taxation, customs, health and safety, environment, and criminal law) will interfere ICANN in much the same way that Brazilian civil authorities will. The end goal here (as Milton and parminder said) should be to avoid US use of ICANN as a tool of US power it is not to make ICANN immune from civil law generally. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Monday, August 21, 2017 9:51 AM To: Mueller, Milton L <milton@gatech.edu>; parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest. _____ De: Thiago Braz Jardim Oliveira Enviado: segunda-feira, 21 de agosto de 2017 9:24 Para: Mueller, Milton L; parminder; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Milton, Dear All, Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation. There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions. The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible). Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANNs accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as HelmsBurton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community. Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: segunda-feira, 21 de agosto de 2017 7:45 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote: Thiago I am not sure why you are still talking about immunity when ICANNs accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANNs accountability to its global MS community. We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you?
From what you say above it should.
Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> <paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago _____ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> ] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANNs accountability goals) which activities? You say certain of its activities which? And immune from which law? Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago _____ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr> ] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview =/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p df> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Paul, I beg to differ, and would ask you to explain why you think the motive of "advancing US foreign policy" makes any difference? It does not. What matters is that the exercise of national jurisdiction over ICANN, for whatever alleged purpose, interferes with the activities ICANN performs in the global public interest. Or else States could meddle with ICANN's policy-related activities by simply pointing to any motive other than the one you propose. Does it sound logical to you that the US should be entitled to shut down the DNS because, say, it is fighting money laundering within the US? The idea is certainly absurd, but let me insist on this. It does not matter why a State interferes with ICANN's global public activities. If one State is in a position to interfere with ICANN's global public activities while others are not - which is the position of the territorial State for the reasons I mentioned in earlier emails -, so we already find ourselves in a situation where "governments [ARE NOT ABLE], on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet." And not in the Tunis Agenda nor in any other international document will we find the idea that one State, more than others, are authorised to impact on ICANN's policy-related activities in case they are not advancing their foreign policy. So what's the legal basis or policy argument for your suggestion that, contrary to what I said, there should be such a "purpose" test? It might be useful to realise that, in the international law of immunities, such tests that make immunity dependent on the "purpose" of State actions have long been rejected... Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 21 de agosto de 2017 14:25 Para: Thiago Braz Jardim Oliveira; 'Mueller, Milton L'; 'parminder'; ws2-jurisdiction@icann.org Assunto: RE: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN I think this is an incomplete statement. US enforcement agencies should not “interfere with the activities ICANN performs in the global public interests as a means of advancing US foreign policy.” Enforcement agencies acting in the normal course (e.g. taxation, customs, health and safety, environment, and criminal law) will “interfere” ICANN – in much the same way that Brazilian civil authorities will. The end goal here (as Milton and parminder said) should be to avoid US use of ICANN as a tool of US power – it is not to make ICANN immune from civil law generally. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Monday, August 21, 2017 9:51 AM To: Mueller, Milton L <milton@gatech.edu>; parminder <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest. ________________________________ De: Thiago Braz Jardim Oliveira Enviado: segunda-feira, 21 de agosto de 2017 9:24 Para: Mueller, Milton L; parminder; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Milton, Dear All, Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation. There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions. The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible). Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as Helms–Burton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community. Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: segunda-feira, 21 de agosto de 2017 7:45 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote: Thiago I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community. We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should. Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Well, Thiago, my basis for that was the statement made by Milton with which parminder agreed. We have already established that the goal here is not to immunize ICANN from all domestic US law. We have agreed that it is not immune from California corporation law. Paraminder has agreed it should not be immune from criminal law or health and safety law in the US (and it should not be in Brazil either for that matter). I am content with Erichs formulation of what is and is not essential to ICANN. As for your contention that the territorial state is the only one to be able to interfere with ICANN that is simply factually wrong. You can continue to say it, but that wont change the fact that it is wrong. When and if Brazil ever passes a law granting ICANN immunity from its money laundering laws, please let me know. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Thiago Braz Jardim Oliveira [mailto:thiago.jardim@itamaraty.gov.br] Sent: Monday, August 21, 2017 3:11 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu>; 'parminder' <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: RES: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, I beg to differ, and would ask you to explain why you think the motive of "advancing US foreign policy" makes any difference? It does not. What matters is that the exercise of national jurisdiction over ICANN, for whatever alleged purpose, interferes with the activities ICANN performs in the global public interest. Or else States could meddle with ICANN's policy-related activities by simply pointing to any motive other than the one you propose. Does it sound logical to you that the US should be entitled to shut down the DNS because, say, it is fighting money laundering within the US? The idea is certainly absurd, but let me insist on this. It does not matter why a State interferes with ICANN's global public activities. If one State is in a position to interfere with ICANN's global public activities while others are not - which is the position of the territorial State for the reasons I mentioned in earlier emails -, so we already find ourselves in a situation where "governments [ARE NOT ABLE], on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet." And not in the Tunis Agenda nor in any other international document will we find the idea that one State, more than others, are authorised to impact on ICANN's policy-related activities in case they are not advancing their foreign policy. So what's the legal basis or policy argument for your suggestion that, contrary to what I said, there should be such a "purpose" test? It might be useful to realise that, in the international law of immunities, such tests that make immunity dependent on the "purpose" of State actions have long been rejected... Best, Thiago _____ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 21 de agosto de 2017 14:25 Para: Thiago Braz Jardim Oliveira; 'Mueller, Milton L'; 'parminder'; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN I think this is an incomplete statement. US enforcement agencies should not interfere with the activities ICANN performs in the global public interests as a means of advancing US foreign policy. Enforcement agencies acting in the normal course (e.g. taxation, customs, health and safety, environment, and criminal law) will interfere ICANN in much the same way that Brazilian civil authorities will. The end goal here (as Milton and parminder said) should be to avoid US use of ICANN as a tool of US power it is not to make ICANN immune from civil law generally. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Monday, August 21, 2017 9:51 AM To: Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu> >; parminder <parminder@itforchange.net <mailto:parminder@itforchange.net> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest. _____ De: Thiago Braz Jardim Oliveira Enviado: segunda-feira, 21 de agosto de 2017 9:24 Para: Mueller, Milton L; parminder; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Milton, Dear All, Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation. There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions. The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible). Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANNs accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as HelmsBurton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community. Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: segunda-feira, 21 de agosto de 2017 7:45 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote: Thiago I am not sure why you are still talking about immunity when ICANNs accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANNs accountability to its global MS community. We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you?
From what you say above it should.
Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> <paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago _____ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> ] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANNs accountability goals) which activities? You say certain of its activities which? And immune from which law? Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr> > Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago _____ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr> ] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br> >: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview =/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p df> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Paul, Arguably any country might prescribe laws in respect to ICANN, but not all countries can enforce these laws. Enforcement jurisdiction is eminently territorial. Only the US can enforce whatever law it chooses to enforce in respect of the activities ICANN performs within the US in the global public interest. I provided examples and rationale for this in earlier emails. As to your suggestion that there is agreement to immunise ICANN's activities from the US jurisdiction that is exercised in pursuance of US foreign policy, I can tell you two things. One: fair enough, there is agreement to do that, so let's do that, but there might be sufficient support for doing more than that. Two: we should be in the business of recommending solutions that satisfy ICANN's "Accountability" goals as defined under the Charter of W2. To achieve that we should recommend that ICANN be given immunity in respect of the activities you already agreed should be immune from US jurisdiction (namely, those performed in the global public interest), except that there is no need that the US jurisdiction exercised over these activities be exercised for the purposes of advancing US foreign policy. I believe I have been providing objective reasons for all the above points and responding as objectively as possible to the questions and comments you've made. They are here and in my earlier emails. Best regards, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 21 de agosto de 2017 17:11 Para: Thiago Braz Jardim Oliveira; 'Mueller, Milton L'; 'parminder'; ws2-jurisdiction@icann.org Assunto: RE: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Well, Thiago, my basis for that was the statement made by Milton with which parminder agreed. We have already established that the goal here is not to immunize ICANN from all domestic US law. We have agreed that it is not immune from California corporation law. Paraminder has agreed it should not be immune from criminal law or health and safety law in the US (and it should not be in Brazil either for that matter). I am content with Erich’s formulation of what is and is not essential to ICANN. As for your contention that the territorial state is the only one to be able to interfere with ICANN – that is simply factually wrong. You can continue to say it, but that won’t change the fact that it is wrong. When and if Brazil ever passes a law granting ICANN immunity from its money laundering laws, please let me know. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Thiago Braz Jardim Oliveira [mailto:thiago.jardim@itamaraty.gov.br] Sent: Monday, August 21, 2017 3:11 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu>; 'parminder' <parminder@itforchange.net>; ws2-jurisdiction@icann.org Subject: RES: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, I beg to differ, and would ask you to explain why you think the motive of "advancing US foreign policy" makes any difference? It does not. What matters is that the exercise of national jurisdiction over ICANN, for whatever alleged purpose, interferes with the activities ICANN performs in the global public interest. Or else States could meddle with ICANN's policy-related activities by simply pointing to any motive other than the one you propose. Does it sound logical to you that the US should be entitled to shut down the DNS because, say, it is fighting money laundering within the US? The idea is certainly absurd, but let me insist on this. It does not matter why a State interferes with ICANN's global public activities. If one State is in a position to interfere with ICANN's global public activities while others are not - which is the position of the territorial State for the reasons I mentioned in earlier emails -, so we already find ourselves in a situation where "governments [ARE NOT ABLE], on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet." And not in the Tunis Agenda nor in any other international document will we find the idea that one State, more than others, are authorised to impact on ICANN's policy-related activities in case they are not advancing their foreign policy. So what's the legal basis or policy argument for your suggestion that, contrary to what I said, there should be such a "purpose" test? It might be useful to realise that, in the international law of immunities, such tests that make immunity dependent on the "purpose" of State actions have long been rejected... Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: segunda-feira, 21 de agosto de 2017 14:25 Para: Thiago Braz Jardim Oliveira; 'Mueller, Milton L'; 'parminder'; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN I think this is an incomplete statement. US enforcement agencies should not “interfere with the activities ICANN performs in the global public interests as a means of advancing US foreign policy.” Enforcement agencies acting in the normal course (e.g. taxation, customs, health and safety, environment, and criminal law) will “interfere” ICANN – in much the same way that Brazilian civil authorities will. The end goal here (as Milton and parminder said) should be to avoid US use of ICANN as a tool of US power – it is not to make ICANN immune from civil law generally. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Monday, August 21, 2017 9:51 AM To: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; parminder <parminder@itforchange.net<mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest. ________________________________ De: Thiago Braz Jardim Oliveira Enviado: segunda-feira, 21 de agosto de 2017 9:24 Para: Mueller, Milton L; parminder; ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Milton, Dear All, Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation. There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions. The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible). Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as Helms–Burton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community. Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: segunda-feira, 21 de agosto de 2017 7:45 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote: Thiago I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community. We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community". Now that we agree on the objectives of what we want, it should be easy to go ahead. It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should. Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Tuesday 22 August 2017 01:41 AM, Paul Rosenzweig wrote:
Well, Thiago, my basis for that was the statement made by Milton with which parminder agreed. We have already established that the goal here is not to immunize ICANN from all domestic US law. We have agreed that it is not immune from California corporation law.
Paul, since a lot of your recent emails and arguments are based on what you think that Milton and I agreed on, let me point out a key facutal error on your part in this regard. I am quoting verbatim what we supposedly agreed upon, with key text that is relevant to your erroneous understanding of it highlightied on the bold. " "...from the vagaries of U.S. foreign policy *or other laws and policies *that*would circumvent ICANN’s accountability to its global MS community*." So any or all laws that circumvent ICANN's accountability to its global MS community are included in this "agreement". We of course would never have issues with US state enforcing anything, ans the same with other states, with regard to any action and/or impact within its territorial boundaries. Our problem is only when such action and/or impact shows outside its territorial building, and we are focussed on those cases alone, and such cases can result from a host of US state's legislative, judicial, executive or regulatory actions, not just explicit foreign policy.
Paraminder has agreed it should not be immune from criminal law or health and safety law in the US (and it should not be in Brazil either for that matter).
it is important to make a crucial distinction here, which Thiago has been hammering upon rather consistently, between such laws or regulation as affecting ICANN's global polocy making and implementation remit, on one hand, and its organisational life within the US on the other. Let me give an example using health regulation. We of course would agree that US should be able to enforce health regulation like, I dont know, compulsorily dis-infecting the buildings surroundings, quarantining people with certain kinds of infections, and so on. However, use of health regulation to interfere with, say the gLTD rules of .health and .pharma gTLD, */in their global application/*, is not acceptable. In both these cases health regulation of the US is involved, but one case encroaches upon ICANN's accountability to its global MS community" (and not just the US) and other, substantively, does not, and is merely a practical issue of general benefit to all. I hope I make myself clear. In the circumstances, it will be a incorrect statement, or at least inadequate, to say that I have agreed that ICANN should be immune from US healt, safety, etc law - to repeat, it should be immune form these in terms to ICANN's organisation's practical life in the US, but not in terms of its global policy making and implementation.
I am content with Erich’s formulation of what is and is not essential to ICANN.
As for your contention that the territorial state is the only one to be able to interfere with ICANN – that is simply factually wrong. You can continue to say it, but that won’t change the fact that it is wrong. When and if Brazil ever passes a law granting ICANN immunity from its money laundering laws, please let me know.
What you say is simply factually wrong. Brazil has not way to enforce ICANN's observance of its laws in terms of its worldwide policy making and implementation, but the US has. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* Thiago Braz Jardim Oliveira [mailto:thiago.jardim@itamaraty.gov.br] *Sent:* Monday, August 21, 2017 3:11 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; 'Mueller, Milton L' <milton@gatech.edu>; 'parminder' <parminder@itforchange.net>; ws2-jurisdiction@icann.org *Subject:* RES: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Paul,
I beg to differ, and would ask you to explain why you think the motive of "advancing US foreign policy" makes any difference?
It does not. What matters is that the exercise of national jurisdiction over ICANN, for whatever alleged purpose, interferes with the activities ICANN performs in the global public interest. Or else States could meddle with ICANN's policy-related activities by simply pointing to any motive other than the one you propose. Does it sound logical to you that the US should be entitled to shut down the DNS because, say, it is fighting money laundering within the US?
The idea is certainly absurd, but let me insist on this. It does not matter why a State interferes with ICANN's global public activities. If one State is in a position to interfere with ICANN's global public activities while others are not - which is the position of the territorial State for the reasons I mentioned in earlier emails -, so we already find ourselves in a situation where "governments [ARE NOT ABLE], on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet." And not in the Tunis Agenda nor in any other international document will we find the idea that one State, more than others, are authorised to impact on ICANN's policy-related activities in case they are not advancing their foreign policy.
So what's the legal basis or policy argument for your suggestion that, contrary to what I said, there should be such a "purpose" test? It might be useful to realise that, in the international law of immunities, such tests that make immunity dependent on the "purpose" of State actions have long been rejected...
Best,
Thiago
------------------------------------------------------------------------
*De:*Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] *Enviado:* segunda-feira, 21 de agosto de 2017 14:25 *Para:* Thiago Braz Jardim Oliveira; 'Mueller, Milton L'; 'parminder'; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* RE: [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
I think this is an incomplete statement. US enforcement agencies should not “interfere with the activities ICANN performs in the global public interests /as a means of advancing US foreign policy.”/ Enforcement agencies acting in the normal course (e.g. taxation, customs, health and safety, environment, and criminal law) will “interfere” ICANN – in much the same way that Brazilian civil authorities will. The end goal here (as Milton and parminder said) should be to avoid US use of ICANN as a tool of US power – it is /not/ to make ICANN immune from civil law generally.
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Monday, August 21, 2017 9:51 AM *To:* Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>; parminder <parminder@itforchange.net <mailto:parminder@itforchange.net>>; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Just to clarify, the impact of OFAC sanctions on the operations of ICANN must be averted, and if that can be achieved in any way through a general license, so be it. But in addition to that, we should also try and recommend other measures that ensure US enforcement agencies cannot, in spite of OFAC and any general licensing, interfere with the activities ICANN performs in the global public interest.
------------------------------------------------------------------------
*De:*Thiago Braz Jardim Oliveira *Enviado:* segunda-feira, 21 de agosto de 2017 9:24 *Para:* Mueller, Milton L; parminder; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* RES: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Milton,
Dear All,
Thank you for your comment. Further to Parminder's response, I will try and respond myself to the points you raised, which I hope will make it clear that I am not advocating that ICANN change its status as a Californian non-profit public benefit corporation.
There is no obstacle preventing private organisations formed under the laws of one country, as is ICANN, to benefit from jurisdictional immunities. If immunity is granted - immunity with respect to the functions it performs in the global public interest -, ICANN would still be an organisation incorporated under the laws of California, subject to California laws and accountability mechanisms in every aspect of its daily life that do not interfere with the performance of its global public functions.
The above sort of arrangement would need no precedent in the world for us to conceive it. We could innovate. But there are precedents and they can be looked at for inspiration. For example, the ICRC (International Committee of the Red Cross) is a private association formed under the Swiss Civil Code, it draws its legal existence from the Swiss domestic order, it is subject to the laws of Switzerland, it is NOT an intergovernmental organisation. Yet it enjoys immunity from the local laws in many respects (the basis is an agreement with Switzerland and Swiss laws themselves). Notice, further, that where it enjoys jurisdictional immunity, it is immunity from adjudication and enforcement, for it can be waived at any time. It is not immunity from liability, which ordinarily shall be carried out by mechanisms outside the domestic legal framework. (In the US, there would be at least one similar example, as is the case of the International Fertilizer and Development Center, further showing that the immunity arrangement we propose is indeed possible).
Finally, I think we all agree that what we need for ICANN is "insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community." Precisely this insulation cannot be achieved through just the commitment by US enforcement agencies that, say, OFAC will compulsorily grant any license ICANN requests. For new and unforeseen laws and policies that interfere with ICANN's global functions can at any time be enacted by the territorial State, and their application to ICANN will not be barred unless ICANN enjoys immunity in respect to the set of activities we advocate it should enjoy, namely policy development and policy implementation activities performed in the global public interest. (I am sure you have heard of the "Cuban Liberty and Democratic Solidarity [Libertad] Act of 1996", also known as Helms–Burton Act, which created new restrictions for US-based companies to deal with Cuba and with whoever dealt with Cuba). So it is the protection of jurisdictional immunities a necessary step to meet ICANN's accountability goals, as defined in the Charter of WS2, coupled with the provision of compulsory dispute settlement mechanisms that are independent from any national jurisdiction and representative of the diversity of the Internet community.
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] *Enviado:* segunda-feira, 21 de agosto de 2017 7:45 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
On Monday 21 August 2017 08:26 AM, Mueller, Milton L wrote:
Thiago
I am not sure why you are still talking about “immunity” when ICANN’s accountability arrangements are rooted in California nonprofit public benefit corporation law. Forgive me if I am misunderstanding you, but no one wants ICANN to be immune from its fundamental bylaws, and those bylaws are based in California jurisdiction. What we need is not some kind of blanket immunity from all aspects of U.S. jurisdiction, but insulation from the vagaries of U.S. foreign policy or other laws and policies that would circumvent ICANN’s accountability to its global MS community.
We have had considerable discussion here on that what is being sought for ICANN is immunity in a manner that does not affect its working under the california NP law, so, there is no proposal on the table to make "ICANN to be immune from its fundamental bylaws". In fact we are just seeking such immunity as would provide, as you put it, "insulation from the vagaries of US foreign policy or other laws and policies that would circumvent ICANN's accountability to its global MS community".
Now that we agree on the objectives of what we want, it should be easy to go ahead.
It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should.
Such customised immunity for ICANN will meet both the objectives that we agreed on above.
parminder
--MM
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Sunday, August 20, 2017 10:17 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Paul,
If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals.
As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest.
For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country)
Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2.
Best,
Thiago
------------------------------------------------------------------------
*De:*Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>] *Enviado:* sábado, 19 de agosto de 2017 12:06 *Para:* Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Saturday, August 19, 2017 10:22 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Raphael,
Is my "stance of one seeking complete immunity"? No, that's not what I said.
Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others.
Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions.
Best,
Thiago
------------------------------------------------------------------------
*De:*Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr>] *Enviado:* sábado, 19 de agosto de 2017 9:46 *Para:* Thiago Braz Jardim Oliveira *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should. I've expressed many weeks ago my problem with the IOIA. You are asking Congress to pass legislation specifically involving ICANN. This would be a wonderful gift to Ted Cruz, he would be able to replay the IANA transition, only this time he would actually have some leverage. God knows what else in addition to immunities would be bundled into such a legislative package. No, that is just not a practical option, so please give up on it. Politics is the art of the possible and you are asking for something that is not possible under a Trump administration. Face that fact and move forward. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology Such customised immunity for ICANN will meet both the objectives that we agreed on above. parminder --MM From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Sunday, August 20, 2017 10:17 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com><mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals. As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest. For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country) Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>] Enviado: sábado, 19 de agosto de 2017 12:06 Para: Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN's accountability goals) ... which activities? You say "certain of its activities" - which? And immune from which law? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 10:22 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Raphael, Is my "stance of one seeking complete immunity"? No, that's not what I said. Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others. Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions. Best, Thiago ________________________________ De: Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr<mailto:raphael.beauregardlacroix@sciencespo.fr>] Enviado: sábado, 19 de agosto de 2017 9:46 Para: Thiago Braz Jardim Oliveira Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on. Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN less accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example) 2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br<mailto:thiago.jardim@itamaraty.gov.br>>: Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net<mailto:parminder@itforchange.net>] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Monday 21 August 2017 06:28 PM, Mueller, Milton L wrote:
It is my contention that immunity under US International Organisations Immunities Act can be obtained in a manner that still keeps ICANN subject to California NP law, and thus able to undertake its internal governance processes in an unchanged way. If this can be done, would it satisfy you? From what you say above it should.
I’ve expressed many weeks ago my problem with the IOIA. You are asking Congress to pass legislation specifically involving ICANN. This would be a wonderful gift to Ted Cruz, he would be able to replay the IANA transition, only this time he would actually have some leverage. God knows what else in addition to immunities would be bundled into such a legislative package. No, that is just not a practical option, so please give up on it. Politics is the art of the possible and you are asking for something that is not possible under a Trump administration. Face that fact and move forward.
I understand that you mostly agree that immunity under the US IOI Act is the right thing and desirable, but you think it is impractical with Ted Cruz, Trump admin etc, around. We can and would never know what all can be expected and what is impractical with the current (or future) US administration. That precisely is the point of seeking jurisdictional immunity. It is plain travesty of logic that vagaries of US politics, that our proposal seeks to overcome for ICANN, are being argued in favour of not seeking such immunity. I repeat, it is just your (and others') complacence of being protected by US law as US citizens that results in such senseless logic and insensitivity. We cannot live in the fear of a Ted Cruz or a particular US administration. If they can play around with a proposal for immunity under IOI Act, they can in any case do whatever they want with ICANN right now -- ot being an ordinary US organisation. There is no protection for it, and this is what worries us into being so active on the jurisdiction immunity issue. BTW, Milton, we have been discussing the jurisdiction immunity etc question for pretty long now, before TED Cruz or Trump (with America First") got into the picture. And you have never been sympathetic to it. So, really, to use Ted Cruz as an excuse now is a bit... you know.... There will always be a Ted Cruz in the US, and everywhere, which precisely is the problem, and it can be no reason for us not to move forward on jurisdiction immunity. The job of this group is to recommend what is the right governance model for the ICANN, and not to second guess US administration. It is up to the latter to do what it would to the proposal, If it does not act right away, ICANN's rec to the US gov on jurisdictional immunity will always be there, and whichever is the right person or administration, or right time, to act on it, it will get acted upon. We should do our job, and let US admin do its. As, to also recommending what you think are more practical and immediate options, we can always describe our IOI Act immunity for ICANN proposal in detail and then add: Meanwhile, as that is worked out, on an immediate and urgent basis, the following should be done........ And put forward these other intermediate or complementary options. parminder
Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology
Such customised immunity for ICANN will meet both the objectives that we agreed on above.
parminder
--MM
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Sunday, August 20, 2017 10:17 PM *To:* Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> <mailto:paul.rosenzweig@redbranchconsulting.com>; 'Raphaël BEAUREGARD-LACROIX' <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Paul,
If you check the Charter of Work Stream 2 (here's the link: https://community.icann.org/display/WEIA/Charter), you'll see that the NETmundial multistakeholder statement is expressly relied on precisely to define "accountability" in the terms I explained. So, yes, the NETmundial is a statement of ICANN's accountability goals.
As to the activities that should be exempted from national jurisdictions in order to meet these accountability goals, they are the policy development and policy implementation activities of ICANN that are performed in the global public interest.
For reasons that I explained earlier, the decisive and necessary step in this direction should be immunity in their respect from the jurisdiction of the country of incorporation, which is the one with jurisdiction to enforce national rules (as distinguished from jurisdiction to prescribe). (It is no coincidence that "status of force agreements" or "headquarters agreements" or "accords de siège" - or even national laws as in the many examples given in the study on immunity commissioned to assist ICANN here: http://archive.icann.org/en/psc/corell-24aug06.html - provide for immunity to organisations from the jurisdiction of the host country, not just any country)
Admittedly, any country in the world should refrain from ascertaining jurisdiction over ICANN's policy-related activities. But notice that the core of these activities (which are the ones for which there should be immunity) are subject to the territorial jurisdiction of the US, and other countries have no authority to enforce their prescriptions in their respect. That notwithstanding, as someone already said, if the necessary immunity is set to be obtained from the country of incorporation, other countries will have no problem in signing in the document where they all agree to limit their already virtually nonexistent powers to impact ICANN's global operations. We should recommend the first and decisive step, and all the other steps, including the establishment of a compulsory and independent dispute settlement mechanism with jurisdiction to judge ICANN for the activities exempted from national jurisdictions. Nothing short of that would meet ICANN's accountability goals as per the Charter of WS2.
Best,
Thiago
------------------------------------------------------------------------
*De:*Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>] *Enviado:* sábado, 19 de agosto de 2017 12:06 *Para:* Thiago Braz Jardim Oliveira; 'Raphaël BEAUREGARD-LACROIX' *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* RE: [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Leaving aside that the netMundial statement is not an ICANN statement (and therefore not a statement of ICANN’s accountability goals) … which activities? You say “certain of its activities” – which? And immune from which law?
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Saturday, August 19, 2017 10:22 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr>> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* [Ws2-jurisdiction] RES: RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear Raphael,
Is my "stance of one seeking complete immunity"? No, that's not what I said.
Would ICANN's immunity from US jurisdiction in respect of certain of its activities, which are performed in the global public interest, make it less accountable? No, it would not. Instead, it would increase ICANN's accountability as defined in the NETmundial multistakeholder statement, that is accountability towards all stakeholders. Currently, ICANN's accountability mechanisms do not meet all stakeholders expectations, for ICANN is more accountable to one certain country and its citizens than to others.
Can ICANN's accountability rank higher than treaty organisations in the scenario ICANN is granted jurisdictional immunities? Yes, suffice it to establish an independent and compulsory dispute settlement mechanism for the activities and disputes that are then exempted from national jurisdictions.
Best,
Thiago
------------------------------------------------------------------------
*De:*Raphaël BEAUREGARD-LACROIX [raphael.beauregardlacroix@sciencespo.fr <mailto:raphael.beauregardlacroix@sciencespo.fr>] *Enviado:* sábado, 19 de agosto de 2017 9:46 *Para:* Thiago Braz Jardim Oliveira *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate. And don't you think it would then make ICANN /less /accountable? If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org>
On Saturday 19 August 2017 06:16 PM, Raphaël BEAUREGARD-LACROIX wrote:
Parminder: you seem to be wanting immunity from "US public law," but unless you can define that more precisely than "all the laws that affect ICANN except the CCC" I would not be inclined to see that in as a recommendation in the final report. Yes, I have read all the materials that you have submitted, and yes there are many NGOs that have obtained (some form of) immunity under the said US act, but unless we can know immunity from what, that does not tell us much. And even if we did, we are still stuck with the problem of defining what we would want ICANN to be immune from. (except if we go with what I understand to be Thiago's stance) "Public law" is extremely ambiguous and equivocal and is not a category we can rely on.
Raphael: You question is equivalent to someone insisting on being told "what is the (rightful and legal) authority of the state with regard to its citizens?", and not being satisfied with a general response about the political role of the state, about institutions, laws, enforcement powers, etc of the state, and insisting on being provided a precise list. Sorry, such a list is not possible.Not for me, not for anyone.
Thiago: is your stance one of seeking complete immunity? And besides, I am not sure how granting ICANN immunity of any sort would foster more participating in ICANN-related internet governance decision-making and debate
I am not sure if you have any trust in democratic systems at all. Whatever else we might arrange and speak of today democracy and democratic institutions continue to the bulwark of accountability to people of public institutions. And democracy means people vote for and otherwise contribute to shaping policy institutions. It also means removing or reducing the power of those processes/ institutions that are not equally contributed to by all, as the US jurisdiction is not.
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global public (in not prioritizing US interests over that of other countries' which the application of US jurisdiction on ICANN results in).
If I had to rank organisations in terms of accountability, to me ICANN ranks much higher than any treaty organisation (UN or OECD for example)
Oh, well! Lets not get into that debate. I will allow you to have your opinion on this matter. Just know that such an opinion is not widely shared outside some charmed ICANN related circles. parminder
2017-08-19 14:03 GMT+02:00 Thiago Braz Jardim Oliveira <thiago.jardim@itamaraty.gov.br <mailto:thiago.jardim@itamaraty.gov.br>>:
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------ *De:* ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net>] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684>
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org>] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction <https://mm.icann.org/mailman/listinfo/ws2-jurisdiction>
-- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global. Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree. Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like". And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity. At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down. Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it. But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards". On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Nigel Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument. That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so? If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side! Parminder PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making. On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global.
Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity.
At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down.
Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
That's for background information. As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant. But providing immunity would allow ICANN "to do whatever it likes". Not on my watch. On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument.
That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global.
Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity.
At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down.
Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Ws2-jurisdiction mailing list 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
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
That's for background information.
As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf> where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context. The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones? And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy. One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity! parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument.
That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global.
Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity.
At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down.
Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie"). It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it. You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states) Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law. And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny. And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract. By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow. But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in. It happens to be established in the US. I have a number of reservations about the legal system of the US. In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law. But it is where it is. And we are repeating ourselves. I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law". On 20/08/17 09:21, parminder wrote:
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
That's for background information.
As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf> where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context.
The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy.
One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity!
parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument.
That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global.
Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity.
At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down.
Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
. And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie").
It is a falsehood that if provided immunity ICANN can "do whatever it likes", the expression you used. But I apologize if the term offends you. I see below that for ICANN's actions regarding root zone youd like them to be subject to US law. This is what I object to. And herein lies the difference. You want everything to be subject to rule-of-law. I too am a great votary of rule of law. But it seems that it does not matter to you whether the law in a particular case is collectively determined by those who are subject to it or not, or in other words, whether a law is democratic or not. You just want some law that meets your subjective standards (I hear US, Swiss, UK laws mentioned, but alas no poor under developed country! So here we are!), no matter who makes such law, and what kind of polity stands behind it. This is a very technical approach to law, and mine is a democratic approach.... That, is the key difference here, and perhaps is at an ideological level, and thus irreconcilable. But let me know if I misrepresent your views and approach. parminder
It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it.
You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states)
Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law.
And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny.
And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract.
By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow.
But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in.
It happens to be established in the US. I have a number of reservations about the legal system of the US.
In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law.
But it is where it is. And we are repeating ourselves.
I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law".
On 20/08/17 09:21, parminder wrote:
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
That's for background information.
As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context.
The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy.
One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity!
parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument.
That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
> . And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global.
Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity.
At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down.
Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
> . And don't you think it would then make ICANN /less /accountable? Maybe less accountable to US public, but more accountable to the global
Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
I see you apologise for my sensitivity to the suggestion I am lying but not for making the suggestion itself. I find that really quite mealy-mouthed. I invite you, please, to clearly withdraw the use of the offensive word "falsehood" which is clearly outwith the standards of behaviour to expected. It seems to me that either (a) you meant to suggest that my assessment is inaccurate and/or my opinion is incorrect or (b) you are intentionally stating that I am propagating falsehoods (i.e. telling fibs, lies etc). Which is it?
1. Falsehood, fib, lie, untruth refer to something untrue or incorrect. A falsehood is a statement that distorts or suppresses the truth, in order to deceive: to tell a falsehood about one's ancestry in order to gain acceptance. A fib denotes a trivial falsehood, and is often used to characterize that which is not strictly true: a polite fib. A lie is a vicious falsehood: to tell a lie about one's neighbor.
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote: On 20/08/17 10:34, parminder wrote:>
On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie").
It is a falsehood that if provided immunity ICANN can "do whatever it likes", the expression you used. But I apologize if the term offends you.
I see below that for ICANN's actions regarding root zone youd like them to be subject to US law. This is what I object to. And herein lies the difference.
You want everything to be subject to rule-of-law. I too am a great votary of rule of law. But it seems that it does not matter to you whether the law in a particular case is collectively determined by those who are subject to it or not, or in other words, whether a law is democratic or not. You just want some law that meets your subjective standards (I hear US, Swiss, UK laws mentioned, but alas no poor under developed country! So here we are!), no matter who makes such law, and what kind of polity stands behind it. This is a very technical approach to law, and mine is a democratic approach.... That, is the key difference here, and perhaps is at an ideological level, and thus irreconcilable.
But let me know if I misrepresent your views and approach.
parminder
It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it.
You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states)
Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law.
And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny.
And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract.
By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow.
But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in.
It happens to be established in the US. I have a number of reservations about the legal system of the US.
In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law.
But it is where it is. And we are repeating ourselves.
I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law".
On 20/08/17 09:21, parminder wrote:
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
That's for background information.
As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context.
The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy.
One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity!
parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument.
That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote:
On 20/08/17 04:09, parminder wrote:
>> . And don't you think it would then make ICANN /less /accountable? > Maybe less accountable to US public, but more accountable to the global
Well, our organisation is not a part of the US public, but the global.
Nonetheless we strongly think that immunity would make ICANN less accountable to the global public interest. So we fundamentally disagree.
Any form of immunity would once again mean ICANN Board and/or staff would return to the approach of the early 2000s when (to use a phrase in common use among a number of my colleagues in the ccTLD world) "they do whatever they like".
And I have personal knowledge of such things: one company I was involved in the very early days of the Internet was directly and most seriously affected (the company no longer exists, pretty much as a result) by ICANN acting (we would have said) without any proper legal basis in US law. They were, in fact, at the behest of a **non**US (or "foreign") governmental entity.
At that time ICANN was partially "protected" by being, in effect a state actor (i.e. ICANN merely "recommended" certain actions to another party, who then acted under US Government contract). The affected party was a start-up with limited resources to bring suit anyway, irrespective of the Governmental connextion and the company consequently had to close down.
Personally I welcome the change to ICANN becoming a purely private body (something I've been working for since 1999), and would oppose any proposals or suggestion to immunise it.
But you fail to take this reasoned, and reasonable, view into account when you repeat your clamour for ICANN to be given one or more "get- out-of-gaol-free cards".
On 20/08/17 04:09, parminder wrote:
>> . And don't you think it would then make ICANN /less /accountable? > Maybe less accountable to US public, but more accountable to the > global _______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
On Sunday 20 August 2017 03:42 PM, Nigel Roberts wrote:
I see you apologise for my sensitivity to the suggestion I am lying but not for making the suggestion itself. I find that really quite mealy-mouthed.
I invite you, please, to clearly withdraw the use of the offensive word "falsehood" which is clearly outwith the standards of behaviour to expected.
It seems to me that either
(a) you meant to suggest that my assessment is inaccurate and/or my opinion is incorrect or
(b) you are intentionally stating that I am propagating falsehoods (i.e. telling fibs, lies etc).
The former. Falsehood is also simply "an untrue statement". https://www.merriam-webster.com/dictionary/falsehood When I said It is a falsehood that if provided immunity ICANN can "do whatever it likes" (It cannot be a lie bec it is not a matter about which you have some privileged knowledge any more than many/most others) it is obvious that it is in this sense the term is used. parminder
Which is it?
1. Falsehood, fib, lie, untruth refer to something untrue or incorrect. A falsehood is a statement that distorts or suppresses the truth, in order to deceive: to tell a falsehood about one's ancestry in order to gain acceptance. A fib denotes a trivial falsehood, and is often used to characterize that which is not strictly true: a polite fib. A lie is a vicious falsehood: to tell a lie about one's neighbor.
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:>
On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie").
It is a falsehood that if provided immunity ICANN can "do whatever it likes", the expression you used. But I apologize if the term offends you.
I see below that for ICANN's actions regarding root zone youd like them to be subject to US law. This is what I object to. And herein lies the difference.
You want everything to be subject to rule-of-law. I too am a great votary of rule of law. But it seems that it does not matter to you whether the law in a particular case is collectively determined by those who are subject to it or not, or in other words, whether a law is democratic or not. You just want some law that meets your subjective standards (I hear US, Swiss, UK laws mentioned, but alas no poor under developed country! So here we are!), no matter who makes such law, and what kind of polity stands behind it. This is a very technical approach to law, and mine is a democratic approach.... That, is the key difference here, and perhaps is at an ideological level, and thus irreconcilable.
But let me know if I misrepresent your views and approach.
parminder
It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it.
You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states)
Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law.
And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny.
And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract.
By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow.
But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in.
It happens to be established in the US. I have a number of reservations about the legal system of the US.
In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law.
But it is where it is. And we are repeating ourselves.
I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law".
On 20/08/17 09:21, parminder wrote:
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
That's for background information.
As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context.
The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy.
One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity!
parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote:
Nigel
Your principal contention is that ICANN's own governance processes are (by your account, pathetically) inadequate to ensure against rogue behaviour. And yes you have been consistent in making this argument.
That surprises me coming for an ICANN insider. One would well ask, why when a UN body, OECD, WIPO, WTO, and many non profits enjoying immunities like I have given examples of can resist becoming rogue cant ICANN too do so? Is all the charade of an unprecedented and exemplary multistakeholder mode of governance of ICANN really not working, neither is it workable? And when you guys were presented with the option of a more accountable membership based model you guys rejected it last year. Why so?
If ICANN's own governance structures are not adequate and proper, work on them, rather than working against, like in rejecting the membership model. Dont seek tutelage of undemocratic powers. If indeed you cant work without oversight, lets devise a good democratic method of oversight which is representative of the whole world, and not just that already most powerful of the countries, the US. No, this is hegemony, this is abject surrender and subjection. This is no way to conduct a global political discourse. Goes back to the nice old adage: you cant have your cake and eat it -- celebrate ICANN as a world beating governance model, and also claim, no it is not adequate to stop ICANN from going rogue, and needs parental control. Choose your side!
Parminder
PS: BTW, I dont really understand the below case study you often hint at.. It seems that the company went broke bec it could not bring a suit against ICANN, did not have the resources etc to do so... But then, I dont see what has changed now, and how would it be any better now. Please do be very clear what case are you making.
On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote: > > On 20/08/17 04:09, parminder wrote: > >>> . And don't you think it would then make ICANN /less >>> /accountable? >> Maybe less accountable to US public, but more accountable to the > global > > Well, our organisation is not a part of the US public, but the > global. > > Nonetheless we strongly think that immunity would make ICANN less > accountable to the global public interest. So we fundamentally > disagree. > > Any form of immunity would once again mean ICANN Board and/or staff > would return to the approach of the early 2000s when (to use a > phrase in common use among a number of my colleagues in the ccTLD > world) "they do whatever they like". > > And I have personal knowledge of such things: one company I was > involved in the very early days of the Internet was directly and > most seriously affected (the company no longer exists, pretty much > as a result) by ICANN acting (we would have said) without any > proper legal basis in US law. They were, in fact, at the behest > of a > **non**US (or "foreign") governmental entity. > > At that time ICANN was partially "protected" by being, in effect a > state actor (i.e. ICANN merely "recommended" certain actions to > another party, who then acted under US Government contract). The > affected party was a start-up with limited resources to bring suit > anyway, irrespective of the Governmental connextion and the company > consequently had to close down. > > Personally I welcome the change to ICANN becoming a purely private > body (something I've been working for since 1999), and would oppose > any proposals or suggestion to immunise it. > > But you fail to take this reasoned, and reasonable, view into > account when you repeat your clamour for ICANN to be given one or > more "get- out-of-gaol-free cards". > > > > > > > On 20/08/17 04:09, parminder wrote: > >>> . And don't you think it would then make ICANN /less >>> /accountable? >> Maybe less accountable to US public, but more accountable to the >> global > _______________________________________________ > Ws2-jurisdiction mailing list > 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
It's clear even from the link you yourself offer what the major meaning of the word is. It is invariably used in Britain to mean "lie" and never to mean "incorrect". The late Iain Paisley was suspended from the House of Commons in 1993 for using the word about the statements of another Member. It is unparliamentary language and it is clearly unprofessional to use to another member of the WG and I am accordingly extremely disappointed at your insistence in so doing. If you meant to suggest that my opinion was wrong, why didn't you say so, instead of using words that say I am in the habit of lying (which the page to referred us to has a reference that says that is what it means. I am not prepared to engage further in this if you don't have the decency to withdraw the word. On 20/08/17 11:46, parminder wrote:
On Sunday 20 August 2017 03:42 PM, Nigel Roberts wrote:
I see you apologise for my sensitivity to the suggestion I am lying but not for making the suggestion itself. I find that really quite mealy-mouthed.
I invite you, please, to clearly withdraw the use of the offensive word "falsehood" which is clearly outwith the standards of behaviour to expected.
It seems to me that either
(a) you meant to suggest that my assessment is inaccurate and/or my opinion is incorrect or
(b) you are intentionally stating that I am propagating falsehoods (i.e. telling fibs, lies etc).
The former. Falsehood is also simply "an untrue statement". https://www.merriam-webster.com/dictionary/falsehood
When I said
It is a falsehood that if provided immunity ICANN can "do whatever it likes" (It cannot be a lie bec it is not a matter about which you have some privileged knowledge any more than many/most others)
it is obvious that it is in this sense the term is used.
parminder
Which is it?
1. Falsehood, fib, lie, untruth refer to something untrue or incorrect. A falsehood is a statement that distorts or suppresses the truth, in order to deceive: to tell a falsehood about one's ancestry in order to gain acceptance. A fib denotes a trivial falsehood, and is often used to characterize that which is not strictly true: a polite fib. A lie is a vicious falsehood: to tell a lie about one's neighbor.
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:>
On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie").
It is a falsehood that if provided immunity ICANN can "do whatever it likes", the expression you used. But I apologize if the term offends you.
I see below that for ICANN's actions regarding root zone youd like them to be subject to US law. This is what I object to. And herein lies the difference.
You want everything to be subject to rule-of-law. I too am a great votary of rule of law. But it seems that it does not matter to you whether the law in a particular case is collectively determined by those who are subject to it or not, or in other words, whether a law is democratic or not. You just want some law that meets your subjective standards (I hear US, Swiss, UK laws mentioned, but alas no poor under developed country! So here we are!), no matter who makes such law, and what kind of polity stands behind it. This is a very technical approach to law, and mine is a democratic approach.... That, is the key difference here, and perhaps is at an ideological level, and thus irreconcilable.
But let me know if I misrepresent your views and approach.
parminder
It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it.
You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states)
Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law.
And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny.
And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract.
By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow.
But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in.
It happens to be established in the US. I have a number of reservations about the legal system of the US.
In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law.
But it is where it is. And we are repeating ourselves.
I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law".
On 20/08/17 09:21, parminder wrote:
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote:
That's for background information.
As you know, all litigation requires huge resources (both financial and human), and that's no different whether it's ICANN or anyone else as Defendant.
But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context.
The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy.
One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity!
parminder
Not on my watch.
On 20/08/17 07:42, parminder wrote: > Nigel > > Your principal contention is that ICANN's own governance processes > are (by your account, pathetically) inadequate to ensure against > rogue behaviour. And yes you have been consistent in making this > argument. > > That surprises me coming for an ICANN insider. One would well ask, > why when a UN body, OECD, WIPO, WTO, and many non profits enjoying > immunities like I have given examples of can resist becoming rogue > cant ICANN too do so? Is all the charade of an unprecedented and > exemplary multistakeholder mode of governance of ICANN really not > working, neither is it workable? And when you guys were presented > with the option of a more accountable membership based model you > guys > rejected it last year. Why so? > > If ICANN's own governance structures are not adequate and proper, > work on them, rather than working against, like in rejecting the > membership model. Dont seek tutelage of undemocratic powers. If > indeed you cant work without oversight, lets devise a good > democratic > method of oversight which is representative of the whole world, and > not just that already most powerful of the countries, the US. No, > this is hegemony, this is abject surrender and subjection. This > is no > way to conduct a global political discourse. Goes back to the nice > old adage: you cant have your cake and eat it -- celebrate ICANN > as a > world beating governance model, and also claim, no it is not > adequate > to stop ICANN from going rogue, and needs parental control. Choose > your side! > > Parminder > > PS: BTW, I dont really understand the below case study you often > hint > at.. It seems that the company went broke bec it could not bring a > suit against ICANN, did not have the resources etc to do so... But > then, I dont see what has changed now, and how would it be any > better > now. Please do be very clear what case are you making. > > > On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote: >> >> On 20/08/17 04:09, parminder wrote: >> >>>> . And don't you think it would then make ICANN /less >>>> /accountable? >>> Maybe less accountable to US public, but more accountable to the >> global >> >> Well, our organisation is not a part of the US public, but the >> global. >> >> Nonetheless we strongly think that immunity would make ICANN less >> accountable to the global public interest. So we fundamentally >> disagree. >> >> Any form of immunity would once again mean ICANN Board and/or staff >> would return to the approach of the early 2000s when (to use a >> phrase in common use among a number of my colleagues in the ccTLD >> world) "they do whatever they like". >> >> And I have personal knowledge of such things: one company I was >> involved in the very early days of the Internet was directly and >> most seriously affected (the company no longer exists, pretty much >> as a result) by ICANN acting (we would have said) without any >> proper legal basis in US law. They were, in fact, at the behest >> of a >> **non**US (or "foreign") governmental entity. >> >> At that time ICANN was partially "protected" by being, in effect a >> state actor (i.e. ICANN merely "recommended" certain actions to >> another party, who then acted under US Government contract). The >> affected party was a start-up with limited resources to bring suit >> anyway, irrespective of the Governmental connextion and the company >> consequently had to close down. >> >> Personally I welcome the change to ICANN becoming a purely private >> body (something I've been working for since 1999), and would oppose >> any proposals or suggestion to immunise it. >> >> But you fail to take this reasoned, and reasonable, view into >> account when you repeat your clamour for ICANN to be given one or >> more "get- out-of-gaol-free cards". >> >> >> >> >> >> >> On 20/08/17 04:09, parminder wrote: >> >>>> . And don't you think it would then make ICANN /less >>>> /accountable? >>> Maybe less accountable to US public, but more accountable to the >>> global >> _______________________________________________ >> Ws2-jurisdiction mailing list >> 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 > _______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
On Sunday 20 August 2017 06:20 PM, Nigel Roberts wrote:
It's clear even from the link you yourself offer what the major meaning of the word is.
It is invariably used in Britain to mean "lie" and never to mean "incorrect".
The late Iain Paisley was suspended from the House of Commons in 1993 for using the word about the statements of another Member.
It is unparliamentary language and it is clearly unprofessional to use to another member of the WG and I am accordingly extremely disappointed at your insistence in so doing.
If you meant to suggest that my opinion was wrong, why didn't you say so, instead of using words that say I am in the habit of lying (which the page to referred us to has a reference that says that is what it means.
I have said, i did not say you were lying. But yes there was expression of unhappiness that less than full care and diligence was being provided to arriving out at the real truth, in circumstances where it was IMO not so difficult to do so, and in fact much material had been provided to assist in that cause. That is the meaning in which the word "falsehood" was used -- not so much an act of commission as significant omission. As for parliamentary traditions, here is a definitive list kept by the Canadian parliament on what words can be used and which not -- "deliberate falsehoods" cannot be used but "falsehood" can be.... But thanks for striving for such high standards for conversations on this list. I will keep it is mind, for me, and also for others .. parminder
I am not prepared to engage further in this if you don't have the decency to withdraw the word.
On 20/08/17 11:46, parminder wrote:
On Sunday 20 August 2017 03:42 PM, Nigel Roberts wrote:
I see you apologise for my sensitivity to the suggestion I am lying but not for making the suggestion itself. I find that really quite mealy-mouthed.
I invite you, please, to clearly withdraw the use of the offensive word "falsehood" which is clearly outwith the standards of behaviour to expected.
It seems to me that either
(a) you meant to suggest that my assessment is inaccurate and/or my opinion is incorrect or
(b) you are intentionally stating that I am propagating falsehoods (i.e. telling fibs, lies etc).
The former. Falsehood is also simply "an untrue statement". https://www.merriam-webster.com/dictionary/falsehood
When I said
It is a falsehood that if provided immunity ICANN can "do whatever it likes" (It cannot be a lie bec it is not a matter about which you have some privileged knowledge any more than many/most others)
it is obvious that it is in this sense the term is used.
parminder
Which is it?
1. Falsehood, fib, lie, untruth refer to something untrue or incorrect. A falsehood is a statement that distorts or suppresses the truth, in order to deceive: to tell a falsehood about one's ancestry in order to gain acceptance. A fib denotes a trivial falsehood, and is often used to characterize that which is not strictly true: a polite fib. A lie is a vicious falsehood: to tell a lie about one's neighbor.
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:>
On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie").
It is a falsehood that if provided immunity ICANN can "do whatever it likes", the expression you used. But I apologize if the term offends you.
I see below that for ICANN's actions regarding root zone youd like them to be subject to US law. This is what I object to. And herein lies the difference.
You want everything to be subject to rule-of-law. I too am a great votary of rule of law. But it seems that it does not matter to you whether the law in a particular case is collectively determined by those who are subject to it or not, or in other words, whether a law is democratic or not. You just want some law that meets your subjective standards (I hear US, Swiss, UK laws mentioned, but alas no poor under developed country! So here we are!), no matter who makes such law, and what kind of polity stands behind it. This is a very technical approach to law, and mine is a democratic approach.... That, is the key difference here, and perhaps is at an ideological level, and thus irreconcilable.
But let me know if I misrepresent your views and approach.
parminder
It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it.
You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states)
Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law.
And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny.
And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract.
By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow.
But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in.
It happens to be established in the US. I have a number of reservations about the legal system of the US.
In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law.
But it is where it is. And we are repeating ourselves.
I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law".
On 20/08/17 09:21, parminder wrote:
On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote: > That's for background information. > > As you know, all litigation requires huge resources (both financial > and human), and that's no different whether it's ICANN or anyone > else > as Defendant. > > But providing immunity would allow ICANN "to do whatever it likes".
This is simply not true, it a falsehood and Id appeal to you to stop propagating it. Apart from that we should have faith in ICANN's own governance model, I have argued repeatedly that immunity for ICANN can be tailored precisely so that it largely covers its core functions and not just everything that ICANN does. Again referring tothis ICANN report <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf>
where the concept of functional immunity ("immunity concerns activities immediately or directly related to the performance of tasks entrusted to the organization"), immunity waivers, etc are discussed in detail, although in a somewhat different context.
The report shows how immunity can be tailored to cover largely just the core functions of an organisation, and the organisation can itself waive its immunities in many regards.... So, please count your problem areas, and we can seek immunity waiver in those areas, financial frauds, labor laws, which ones?
And if it is your case that ICANN's own governance system is inadequate to even performing its core functions properly, and there is a risk that it could go rouge even with respect to them, and therefore it needs parental guidance/ control from the state of US, that precisely is my problem, and not acceptable to me and most of the world. Although I remain amazedat your description , as an ICANN insider, of the state of ICANN governance and responsibility. It is quote worthy.
One would have hoped that in all these years ICANN had evolved a governance and accountability system that did not allow it "to do whatever it likes" but it seems that your testimony is that this is not the case, and its need oversight by the US state to check its abuse of powers. Pity!
parminder
> > Not on my watch. > > On 20/08/17 07:42, parminder wrote: >> Nigel >> >> Your principal contention is that ICANN's own governance processes >> are (by your account, pathetically) inadequate to ensure against >> rogue behaviour. And yes you have been consistent in making this >> argument. >> >> That surprises me coming for an ICANN insider. One would well ask, >> why when a UN body, OECD, WIPO, WTO, and many non profits enjoying >> immunities like I have given examples of can resist becoming rogue >> cant ICANN too do so? Is all the charade of an unprecedented and >> exemplary multistakeholder mode of governance of ICANN really not >> working, neither is it workable? And when you guys were presented >> with the option of a more accountable membership based model you >> guys >> rejected it last year. Why so? >> >> If ICANN's own governance structures are not adequate and proper, >> work on them, rather than working against, like in rejecting the >> membership model. Dont seek tutelage of undemocratic powers. If >> indeed you cant work without oversight, lets devise a good >> democratic >> method of oversight which is representative of the whole world, >> and >> not just that already most powerful of the countries, the US. No, >> this is hegemony, this is abject surrender and subjection. This >> is no >> way to conduct a global political discourse. Goes back to the nice >> old adage: you cant have your cake and eat it -- celebrate ICANN >> as a >> world beating governance model, and also claim, no it is not >> adequate >> to stop ICANN from going rogue, and needs parental control. Choose >> your side! >> >> Parminder >> >> PS: BTW, I dont really understand the below case study you often >> hint >> at.. It seems that the company went broke bec it could not bring a >> suit against ICANN, did not have the resources etc to do so... But >> then, I dont see what has changed now, and how would it be any >> better >> now. Please do be very clear what case are you making. >> >> >> On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote: >>> >>> On 20/08/17 04:09, parminder wrote: >>> >>>>> . And don't you think it would then make ICANN /less >>>>> /accountable? >>>> Maybe less accountable to US public, but more accountable to the >>> global >>> >>> Well, our organisation is not a part of the US public, but the >>> global. >>> >>> Nonetheless we strongly think that immunity would make ICANN less >>> accountable to the global public interest. So we fundamentally >>> disagree. >>> >>> Any form of immunity would once again mean ICANN Board and/or >>> staff >>> would return to the approach of the early 2000s when (to use a >>> phrase in common use among a number of my colleagues in the ccTLD >>> world) "they do whatever they like". >>> >>> And I have personal knowledge of such things: one company I was >>> involved in the very early days of the Internet was directly and >>> most seriously affected (the company no longer exists, pretty >>> much >>> as a result) by ICANN acting (we would have said) without any >>> proper legal basis in US law. They were, in fact, at the behest >>> of a >>> **non**US (or "foreign") governmental entity. >>> >>> At that time ICANN was partially "protected" by being, in >>> effect a >>> state actor (i.e. ICANN merely "recommended" certain actions to >>> another party, who then acted under US Government contract). The >>> affected party was a start-up with limited resources to bring >>> suit >>> anyway, irrespective of the Governmental connextion and the >>> company >>> consequently had to close down. >>> >>> Personally I welcome the change to ICANN becoming a purely >>> private >>> body (something I've been working for since 1999), and would >>> oppose >>> any proposals or suggestion to immunise it. >>> >>> But you fail to take this reasoned, and reasonable, view into >>> account when you repeat your clamour for ICANN to be given one or >>> more "get- out-of-gaol-free cards". >>> >>> >>> >>> >>> >>> >>> On 20/08/17 04:09, parminder wrote: >>> >>>>> . And don't you think it would then make ICANN /less >>>>> /accountable? >>>> Maybe less accountable to US public, but more accountable to the >>>> global >>> _______________________________________________ >>> Ws2-jurisdiction mailing list >>> 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 >> > _______________________________________________ > Ws2-jurisdiction mailing list > 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
You won't give up, will you.
HANSARD, 29th NOVEMBER 1993,COLUMN 790: " Madam Speaker : Order. I am sure that the hon. Gentleman is being as restrained as he can be at this moment. However, falsehoods mean one thing to the Chair 'lies'. I would be obliged if he could rephrase what he is saying."
It's meaning is plain to the Speaker of the House of Commons. I submit that if you don't accept that is the primary meaning, you are doing it deliberately.
And as the former Ambassador to Serbia said on several occasions: "it's not what you say, it's what they hear". -ENDS-
On Sunday 20 August 2017 07:10 PM, Nigel Roberts wrote:
You won't give up, will you.
Actually I already wrote my email withdrawing the word bef I saw this email of yours.... p
HANSARD, 29th NOVEMBER 1993,COLUMN 790: " Madam Speaker : Order. I am sure that the hon. Gentleman is being as restrained as he can be at this moment. However, falsehoods mean one thing to the Chair 'lies'. I would be obliged if he could rephrase what he is saying."
It's meaning is plain to the Speaker of the House of Commons. I submit that if you don't accept that is the primary meaning, you are doing it deliberately.
And as the former Ambassador to Serbia said on several occasions: "it's not what you say, it's what they hear".
-ENDS- _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Sunday 20 August 2017 07:06 PM, parminder wrote:
snip It is unparliamentary language and it is clearly unprofessional to use to another member of the WG and I am accordingly extremely disappointed at your insistence in so doing.
If you meant to suggest that my opinion was wrong, why didn't you say so, instead of using words that say I am in the habit of lying (which the page to referred us to has a reference that says that is what it means. I have said, i did not say you were lying. But yes there was expression of unhappiness that less than full care and diligence was being provided to arriving out at the real truth, in circumstances where it was IMO not so difficult to do so, and in fact much material had been provided to assist in that cause. That is the meaning in which the word "falsehood" was used -- not so much an act of commission as significant omission.
As for parliamentary traditions, here is a definitive list kept by the Canadian parliament on what words can be used and which not -- "deliberate falsehoods" cannot be used but "falsehood" can be.... But thanks for striving for such high standards for conversations on this list. I will keep it is mind, for me, and also for others ..
Further to the explanation of how I used the term, I willingly withdraw it. Can you now respond to the question of technical vs democratic notions of legal regimes.... parminder
parminder
I am not prepared to engage further in this if you don't have the decency to withdraw the word.
On 20/08/17 11:46, parminder wrote:
On Sunday 20 August 2017 03:42 PM, Nigel Roberts wrote:
I see you apologise for my sensitivity to the suggestion I am lying but not for making the suggestion itself. I find that really quite mealy-mouthed.
I invite you, please, to clearly withdraw the use of the offensive word "falsehood" which is clearly outwith the standards of behaviour to expected.
It seems to me that either
(a) you meant to suggest that my assessment is inaccurate and/or my opinion is incorrect or
(b) you are intentionally stating that I am propagating falsehoods (i.e. telling fibs, lies etc). The former. Falsehood is also simply "an untrue statement". https://www.merriam-webster.com/dictionary/falsehood
When I said
It is a falsehood that if provided immunity ICANN can "do whatever it likes" (It cannot be a lie bec it is not a matter about which you have some privileged knowledge any more than many/most others)
it is obvious that it is in this sense the term is used.
parminder
Which is it?
1. Falsehood, fib, lie, untruth refer to something untrue or incorrect. A falsehood is a statement that distorts or suppresses the truth, in order to deceive: to tell a falsehood about one's ancestry in order to gain acceptance. A fib denotes a trivial falsehood, and is often used to characterize that which is not strictly true: a polite fib. A lie is a vicious falsehood: to tell a lie about one's neighbor.
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:
On 20/08/17 10:34, parminder wrote:>
On Sunday 20 August 2017 02:24 PM, Nigel Roberts wrote:
Your arguments are starting to be worthy of the level of discourse currently obtaining in the USA. And I would be reticent at using defamatory words such as 'falsehood' (a synonum of "lie"). It is a falsehood that if provided immunity ICANN can "do whatever it likes", the expression you used. But I apologize if the term offends you.
I see below that for ICANN's actions regarding root zone youd like them to be subject to US law. This is what I object to. And herein lies the difference.
You want everything to be subject to rule-of-law. I too am a great votary of rule of law. But it seems that it does not matter to you whether the law in a particular case is collectively determined by those who are subject to it or not, or in other words, whether a law is democratic or not. You just want some law that meets your subjective standards (I hear US, Swiss, UK laws mentioned, but alas no poor under developed country! So here we are!), no matter who makes such law, and what kind of polity stands behind it. This is a very technical approach to law, and mine is a democratic approach.... That, is the key difference here, and perhaps is at an ideological level, and thus irreconcilable.
But let me know if I misrepresent your views and approach.
parminder
It is my submission and I will not stop "propagating" it (i.e. advocating for it) simply becuase one person denies it.
You are setting up a straw man, labelling it ming and then knocking it down. Nowhere did I refer to immunity being in respect of everything ICANN does (although that IS the Vienna Convention model in respect of the missions of foreign states)
Supposing ICANN (PTI) gets immunity from liability for anything it does in respect of changes to the IANA database. It will then "be able to do anything it likes" in terms of redelegations without the affected parties having recourse to law.
And as we've seen with .XXX, .AFRICA and more latterly .AMAZON, sometimes ICANN's internal mechanisms need to be held up to external account and scrutiny.
And the second straw man is the myth of parental control. ICANN had this until last year, by virtue of USG's control of the IANA contract.
By and large (and there WAS occasional unsatisfactory parenting behviour) that 'parenting' was one of benign neglect, allowing ICANN to make its own mistakes and grow.
But that's gone now. ICANN stands on its own two feet as a non-govenmental, non-profit organisation, which must be accountable to the law of whichever land it is established in.
It happens to be established in the US. I have a number of reservations about the legal system of the US.
In the IFWP in 1998-1999 I argued for Geneva but it quickly became apparent that wasn't going to happen. I would also be very happy with London or some other jurisdiction that is well developed for (just as an example) maritime or aviation law.
But it is where it is. And we are repeating ourselves.
I submit that ICANN must be within the law of whichever jurisdiction it operates in and that principle means "no immunity from law".
On 20/08/17 09:21, parminder wrote: > On Sunday 20 August 2017 01:14 PM, Nigel Roberts wrote: >> That's for background information. >> >> As you know, all litigation requires huge resources (both financial >> and human), and that's no different whether it's ICANN or anyone >> else >> as Defendant. >> >> But providing immunity would allow ICANN "to do whatever it likes". > This is simply not true, it a falsehood and Id appeal to you to stop > propagating it. Apart from that we should have faith in ICANN's own > governance model, I have argued repeatedly that immunity for > ICANN can > be tailored precisely so that it largely covers its core > functions and > not just everything that ICANN does. Again referring tothis ICANN > report > <https://gnso.icann.org/en/issues/igo-ingo-crp-access-initial-19jan17-en.pdf> > > > > where the concept of functional immunity ("immunity concerns > activities > immediately or directly related to the performance of tasks > entrusted to > the organization"), immunity waivers, etc are discussed in detail, > although in a somewhat different context. > > The report shows how immunity can be tailored to cover largely just > the > core functions of an organisation, and the organisation can itself > waive > its immunities in many regards.... So, please count your problem > areas, > and we can seek immunity waiver in those areas, financial frauds, > labor > laws, which ones? > > And if it is your case that ICANN's own governance system is > inadequate > to even performing its core functions properly, and there is a risk > that > it could go rouge even with respect to them, and therefore it needs > parental guidance/ control from the state of US, that precisely > is my > problem, and not acceptable to me and most of the world. Although I > remain amazedat your description , as an ICANN insider, of the > state of > ICANN governance and responsibility. It is quote worthy. > > One would have hoped that in all these years ICANN had evolved a > governance and accountability system that did not allow it "to do > whatever it likes" but it seems that your testimony is that this is > not > the case, and its need oversight by the US state to check its > abuse of > powers. Pity! > > parminder > > >> Not on my watch. >> >> On 20/08/17 07:42, parminder wrote: >>> Nigel >>> >>> Your principal contention is that ICANN's own governance processes >>> are (by your account, pathetically) inadequate to ensure against >>> rogue behaviour. And yes you have been consistent in making this >>> argument. >>> >>> That surprises me coming for an ICANN insider. One would well ask, >>> why when a UN body, OECD, WIPO, WTO, and many non profits enjoying >>> immunities like I have given examples of can resist becoming rogue >>> cant ICANN too do so? Is all the charade of an unprecedented and >>> exemplary multistakeholder mode of governance of ICANN really not >>> working, neither is it workable? And when you guys were presented >>> with the option of a more accountable membership based model you >>> guys >>> rejected it last year. Why so? >>> >>> If ICANN's own governance structures are not adequate and proper, >>> work on them, rather than working against, like in rejecting the >>> membership model. Dont seek tutelage of undemocratic powers. If >>> indeed you cant work without oversight, lets devise a good >>> democratic >>> method of oversight which is representative of the whole world, >>> and >>> not just that already most powerful of the countries, the US. No, >>> this is hegemony, this is abject surrender and subjection. This >>> is no >>> way to conduct a global political discourse. Goes back to the nice >>> old adage: you cant have your cake and eat it -- celebrate ICANN >>> as a >>> world beating governance model, and also claim, no it is not >>> adequate >>> to stop ICANN from going rogue, and needs parental control. Choose >>> your side! >>> >>> Parminder >>> >>> PS: BTW, I dont really understand the below case study you often >>> hint >>> at.. It seems that the company went broke bec it could not bring a >>> suit against ICANN, did not have the resources etc to do so... But >>> then, I dont see what has changed now, and how would it be any >>> better >>> now. Please do be very clear what case are you making. >>> >>> >>> On Sunday 20 August 2017 11:51 AM, Nigel Roberts wrote: >>>> On 20/08/17 04:09, parminder wrote: >>>> >>>>>> . And don't you think it would then make ICANN /less >>>>>> /accountable? >>>>> Maybe less accountable to US public, but more accountable to the >>>> global >>>> >>>> Well, our organisation is not a part of the US public, but the >>>> global. >>>> >>>> Nonetheless we strongly think that immunity would make ICANN less >>>> accountable to the global public interest. So we fundamentally >>>> disagree. >>>> >>>> Any form of immunity would once again mean ICANN Board and/or >>>> staff >>>> would return to the approach of the early 2000s when (to use a >>>> phrase in common use among a number of my colleagues in the ccTLD >>>> world) "they do whatever they like". >>>> >>>> And I have personal knowledge of such things: one company I was >>>> involved in the very early days of the Internet was directly and >>>> most seriously affected (the company no longer exists, pretty >>>> much >>>> as a result) by ICANN acting (we would have said) without any >>>> proper legal basis in US law. They were, in fact, at the behest >>>> of a >>>> **non**US (or "foreign") governmental entity. >>>> >>>> At that time ICANN was partially "protected" by being, in >>>> effect a >>>> state actor (i.e. ICANN merely "recommended" certain actions to >>>> another party, who then acted under US Government contract). The >>>> affected party was a start-up with limited resources to bring >>>> suit >>>> anyway, irrespective of the Governmental connextion and the >>>> company >>>> consequently had to close down. >>>> >>>> Personally I welcome the change to ICANN becoming a purely >>>> private >>>> body (something I've been working for since 1999), and would >>>> oppose >>>> any proposals or suggestion to immunise it. >>>> >>>> But you fail to take this reasoned, and reasonable, view into >>>> account when you repeat your clamour for ICANN to be given one or >>>> more "get- out-of-gaol-free cards". >>>> >>>> >>>> >>>> >>>> >>>> >>>> On 20/08/17 04:09, parminder wrote: >>>> >>>>>> . And don't you think it would then make ICANN /less >>>>>> /accountable? >>>>> Maybe less accountable to US public, but more accountable to the >>>>> global >>>> _______________________________________________ >>>> Ws2-jurisdiction mailing list >>>> 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 >>> >> _______________________________________________ >> Ws2-jurisdiction mailing list >> 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 > _______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list 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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Further to the explanation of how I used the term, I willingly withdraw it.
Thanks.
Can you now respond to the question of technical vs democratic notions of legal regimes.... parminder
I have to say I need to give that some consideration (I'm on a cross-country train today). But my overall view is informed by the observation that (as it seems to me) that ICANN has and is more informed by sociological views of rulemaking than black-letter rule-of-law concepts of accountablity. In other words 'make it up as you go along becuase it seems right', rather than a culture of observance of natural justice. I'm not prepared to see that immune. Whilst I don't insist on any particular legal system where ICANN can be subject to the Rule of Law, there has to be at least one jurisdiction since it is a private, not state actor. N. (And don't think I have no insights on this dichotomy! Whilst the UK as a whole tends towards rule-of-law, judicial review and holding the Executive to account through the courts, not all parts of smaller, independent, British island jurisdictions always reach the same standard . . .)
Sorry Thiago, but as Ive said before, I think this is wrong. EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests. Thats why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-b razil-faces-arrest-over-video.html?mcubz=3). Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 8:04 AM To: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview =/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p df> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
On Saturday 19 August 2017 07:05 PM, Paul Rosenzweig wrote:
Sorry Thiago, but as I’ve said before, I think this is wrong. EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests. That’s why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-br...). Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did.
By arresting a google employee Brazilian gov may be able to make google act as it wishes to (hopefully, legally) "within Brazil". It cant change google's global policy. However, by arresting a google or icann employee, both organisations being HQed in the US, the US government can make google/ icann change their respective global policies. They can change how ICANN's policies impact everyone not just those in the US. I really have no problem with US gov, courts etc, being able to change ICANN's behaviour within US, that is very fine. This is obvious and well known, but if you seek examples, you have seen gltd application book that says ICANN will work within US OFAC sanctions. Havent heard of ICANN saying they'd work within say recent Saudi sanctions on Qatar! Again, all this is well known and elementary. I really do not understand why you have been insisting on this point all the time.... parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *Thiago Braz Jardim Oliveira *Sent:* Saturday, August 19, 2017 8:04 AM *To:* ws2-jurisdiction@icann.org *Subject:* [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN
Dear All,
It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs).
So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction).
Best,
Thiago
------------------------------------------------------------------------
*De:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] *Enviado:* sábado, 19 de agosto de 2017 3:21 *Para:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Assunto:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Lest my response be mis-interpreted, I should clarify that:
The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here).
In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us.
Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go...
parminder
On Saturday 19 August 2017 09:56 AM, parminder wrote:
On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote:
Dear Parminder
Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries?
Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684
*From:*ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] *On Behalf Of *parminder *Sent:* Friday, August 18, 2017 2:20 AM *To:* Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr> <mailto:raphael.beauregardlacroix@sciencespo.fr> *Cc:* ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> *Subject:* Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN
Now for the secons point raised by you.
On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote:
2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this.
I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond
"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)."
Does this not already answer your point? And I also did give a link to anICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html>which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act.
parminder
2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 invarious public submissions <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html>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
_______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
--
Raphaël Beauregard-Lacroix
Sciences Po Law School 2014-2017
LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15
_______________________________________________
Ws2-jurisdiction mailing list
Ws2-jurisdiction@icann.org <mailto: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
Great so lets actually talk about OFAC, which is as far as I can tell the only specific law anyone has identified from which ICANN should be immune. Perhaps we can all agree (whether we think OFAC is a problem or not) that there is no reason why ICANN should not seek a general license of exemption for ccTLDs? Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Saturday, August 19, 2017 10:48 AM To: ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN On Saturday 19 August 2017 07:05 PM, Paul Rosenzweig wrote: Sorry Thiago, but as Ive said before, I think this is wrong. EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests. Thats why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-b razil-faces-arrest-over-video.html?mcubz=3). Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did. By arresting a google employee Brazilian gov may be able to make google act as it wishes to (hopefully, legally) "within Brazil". It cant change google's global policy. However, by arresting a google or icann employee, both organisations being HQed in the US, the US government can make google/ icann change their respective global policies. They can change how ICANN's policies impact everyone not just those in the US. I really have no problem with US gov, courts etc, being able to change ICANN's behaviour within US, that is very fine. This is obvious and well known, but if you seek examples, you have seen gltd application book that says ICANN will work within US OFAC sanctions. Havent heard of ICANN saying they'd work within say recent Saudi sanctions on Qatar! Again, all this is well known and elementary. I really do not understand why you have been insisting on this point all the time.... parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 8:04 AM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> ] em nome de parminder [parminder@itforchange.net <mailto:parminder@itforchange.net> ] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview =/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p df> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Paul, You don't have to apologise. I understand you are a an apt lawyer defending your own interests, which are legitimate but certainly different to the public interest. Also, nothing that you said contradicts my point. About the case you mention, I hope you noticed that the arrest of a Google executive, a Brazilian national, only happened because he was physically present in his country's territory. Further, without condoning or condemning that measure, this was what was left for a country to try and force compliance on the part of a reluctant US-based company with the laws of the place where it provided services. But that was without success, precisely because the company was based in a foreign country - the US -, which was the only one with the necessary jurisdiction to compel the specific performance on the party of the company and which motivated the arrest you mention. Best, Thiago ________________________________ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: sábado, 19 de agosto de 2017 10:35 Para: Thiago Braz Jardim Oliveira; ws2-jurisdiction@icann.org Assunto: RE: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Sorry Thiago, but as I’ve said before, I think this is wrong. EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests. That’s why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-br...). Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 8:04 AM To: ws2-jurisdiction@icann.org Subject: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago ________________________________ De: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org<mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <raphael.beauregardlacroix@sciencespo.fr><mailto:raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org<mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net<mailto: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<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one<https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this<https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...>. 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn<https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012<https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org<mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Dear Thiago Unlike you (who are representing the US government) I have no clients and no interests in this matter other than an interest in seeing that ICANN is accountable. Immunity is generically at odds with accountability. That is why I keep asking immunity from what? For which activities? Parminder has now agreed that criminal activities are not going to be subject to immunity. We can add that to the list (along with California corporate law). But I still dont know which laws you or anyone else wants to be immune from (except, I guess the OFAC regulations) Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Thiago Braz Jardim Oliveira [mailto:thiago.jardim@itamaraty.gov.br] Sent: Saturday, August 19, 2017 10:58 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; ws2-jurisdiction@icann.org Subject: RES: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, You don't have to apologise. I understand you are a an apt lawyer defending your own interests, which are legitimate but certainly different to the public interest. Also, nothing that you said contradicts my point. About the case you mention, I hope you noticed that the arrest of a Google executive, a Brazilian national, only happened because he was physically present in his country's territory. Further, without condoning or condemning that measure, this was what was left for a country to try and force compliance on the part of a reluctant US-based company with the laws of the place where it provided services. But that was without success, precisely because the company was based in a foreign country - the US -, which was the only one with the necessary jurisdiction to compel the specific performance on the party of the company and which motivated the arrest you mention. Best, Thiago _____ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: sábado, 19 de agosto de 2017 10:35 Para: Thiago Braz Jardim Oliveira; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Sorry Thiago, but as Ive said before, I think this is wrong. EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests. Thats why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-b razil-faces-arrest-over-video.html?mcubz=3). Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 8:04 AM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview =/64066898/64948025/ICANN_jurisdiction_questionaire_-_JNC_response-0001.pdf> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.p df> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
Apologies, Thiago. Saturday brain sleep – you obviously represent the Government of Brazil, not America 😊 Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Saturday, August 19, 2017 11:26 AM To: 'Thiago Braz Jardim Oliveira' <thiago.jardim@itamaraty.gov.br>; ws2-jurisdiction@icann.org Subject: Re: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Thiago Unlike you (who are representing the US government) I have no clients and no interests in this matter other than an interest in seeing that ICANN is accountable. Immunity is generically at odds with accountability. That is why I keep asking – immunity from what? For which activities? Parminder has now agreed that criminal activities are not going to be subject to immunity. We can add that to the list (along with California corporate law). But I still don’t know which laws you or anyone else wants to be immune from (except, I guess the OFAC regulations) Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: Thiago Braz Jardim Oliveira [mailto:thiago.jardim@itamaraty.gov.br] Sent: Saturday, August 19, 2017 10:58 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> >; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: RES: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear Paul, You don't have to apologise. I understand you are a an apt lawyer defending your own interests, which are legitimate but certainly different to the public interest. Also, nothing that you said contradicts my point. About the case you mention, I hope you noticed that the arrest of a Google executive, a Brazilian national, only happened because he was physically present in his country's territory. Further, without condoning or condemning that measure, this was what was left for a country to try and force compliance on the part of a reluctant US-based company with the laws of the place where it provided services. But that was without success, precisely because the company was based in a foreign country - the US -, which was the only one with the necessary jurisdiction to compel the specific performance on the party of the company and which motivated the arrest you mention. Best, Thiago _____ De: Paul Rosenzweig [paul.rosenzweig@redbranchconsulting.com] Enviado: sábado, 19 de agosto de 2017 10:35 Para: Thiago Braz Jardim Oliveira; ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: RE: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Sorry Thiago, but as I’ve said before, I think this is wrong. EXCEPT for issues relating to corporate statues (which parminder has already said should not be addressed) every country where ICANN operates does have equal de jure right to exercise jurisdiction (consistent with its own national law) and express its own national interests. That’s why, for example, Brazil arrested a Google executive for failing to comply with Brazilian legal requirements (http://www.nytimes.com/2012/09/26/business/global/top-google-executive-in-br...). Personally, I think that was a mistake by the Brazilian government, but I cannot and would not deny its legal right to do as it did. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of Thiago Braz Jardim Oliveira Sent: Saturday, August 19, 2017 8:04 AM To: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: [Ws2-jurisdiction] RES: ISSUE - unilateral jurisdiction of one country over ICANN Dear All, It is indeed difficult to deny that the authorities of a country where an entity is based have a superior (and in many respects exclusive) claim to jurisdiction over the activities of that entity. For example, the territorial State is the one with exclusive enforcement jurisdiction, so that only the local enforcement agencies have the necessary authority to compel people in the country to comply with national laws and court rulings. In the case of ICANN, if the argument is made that any country in the world could pass legislation to compel ICANN to, say, shut down the DNS, the enforcement of that legislation would still need go through action of US enforcement agencies. In other words, US authorities would have to consent to that (a veto power if you will) and they would have themselves to enforce the required action (one could also think of the need for US courts to recognise foreign judgments, in exequatur proceedings, for them to be enforceable in the US, and the execution would have to be carried out through US organs). So let us not overlook this fact with the argument, which is simply not true, that all countries are in a similar position as the country of incorporation of ICANN to impact on ICANN's activities. Other countries do not have as much jurisdiction as the United States to influence and determine the course of many of ICANN's activities (in fact, the core of ICANN's activities), and it is with a view to ensure that they all participate on an equal footing on all Internet governance-related issues that immunities from US jurisdiction must be sought (N.b. jurisdiction includes prescriptive, adjudicative and enforcement jurisdiction). Best, Thiago _____ De: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [ws2-jurisdiction-bounces@icann.org] em nome de parminder [parminder@itforchange.net] Enviado: sábado, 19 de agosto de 2017 3:21 Para: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Assunto: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Lest my response be mis-interpreted, I should clarify that: The incidence of and accountability to US jurisdiction and public laws wrt ICANN as US incorporated entity is not at all comparable to that of other countries' jurisdiction. It is a simple and obvious fact (though I know often contested here). In the circumstances, getting immunity from US jurisdiction/ public laws is a much higher order problem that to obtain it from other countries. Right now that is the key problem confronting us. Having said this, I stand by the proposal for an international agreement whereby all countries extend such immunity to it in one go... parminder On Saturday 19 August 2017 09:56 AM, parminder wrote: On Saturday 19 August 2017 04:06 AM, Paul Rosenzweig wrote: Dear Parminder Can you please provide a list? That is, can you specify which US laws you wish immunity from under your tailored approach? And, can you also advise, will you also argue (I assume the answer is yes) that ICANN should seek immunity from the public law of other countries? Yes, ICANN very well should seek such immunity from all countries. As immunity from US law can only be provided by US gov, immunities from public law of all other countries will require consent of all other govs. The normal way is to obtain such immunity at one time under an international agreement singed at the same time but all countries, rather than go to about 200 countries one by one. I am very much for such an international agreement providing such international status and corresponding immunity to ICANN. If US were to agree I am sure all outer countries would quickly agree to such an agreement.. parminder Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684> https://keys.mailvelope.com/pks/lookup?op=get&search=0x9A830097CA066684 From: ws2-jurisdiction-bounces@icann.org <mailto:ws2-jurisdiction-bounces@icann.org> [mailto:ws2-jurisdiction-bounces@icann.org] On Behalf Of parminder Sent: Friday, August 18, 2017 2:20 AM To: Raphaël BEAUREGARD-LACROIX <mailto:raphael.beauregardlacroix@sciencespo.fr> <raphael.beauregardlacroix@sciencespo.fr> Cc: ws2-jurisdiction@icann.org <mailto:ws2-jurisdiction@icann.org> Subject: Re: [Ws2-jurisdiction] ISSUE - unilateral jurisdiction of one country over ICANN Now for the secons point raised by you. On Thursday 17 August 2017 02:29 PM, Raphaël BEAUREGARD-LACROIX wrote: 2. How would being subject to the California Corporations Code articulate itself with being immune? In fact this point is related to the first one. The CCC serves as a basic framework of corporate governance, something which is absent from most if not all international organisations. It imposes duties on ICANN and its constituents (board, etc.) and gives to some persons to sue ICANN over these. A blanket immunity would negate this. I have said this repeatedly, that I do not seek full but tailored immunity alone, which allows the operation of california corporations code over ICANN, and also any other such law that is required for ICANN to work in terms of its organisational or technical processes. I quote from the 'solution" part of my email to which you respond "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)." Does this not already answer your point? And I also did give a link to an ICANN commissioned report <https://archive.icann.org/en/psc/corell-24aug06.html> which provides examples of US based NPOs still subject to corresponding state's corporation law but provided partial immunity under the mentioned US act. parminder 2017-08-16 10:36 GMT+02:00 parminder <parminder@itforchange.net <mailto: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 <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire> to this group, including this one <https://community.icann.org/display/WEIA/Jurisdiction+Questionnaire?preview=...> , and also this <https://www.itforchange.net/sites/default/files/Jurisdiction%20of%20ICANN.pd...> . 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 <https://archive.icann.org/en/psc/corell-24aug06.html> 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 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction -- Raphaël Beauregard-Lacroix Sciences Po Law School 2014-2017 LinkedIn <https://www.linkedin.com/in/rapha%C3%ABl-beauregard-lacroix-88733786/> - @rbl0012 <https://twitter.com/rbl0112> - M: +33 7 86 39 18 15 _______________________________________________ Ws2-jurisdiction mailing list Ws2-jurisdiction@icann.org <mailto:Ws2-jurisdiction@icann.org> https://mm.icann.org/mailman/listinfo/ws2-jurisdiction
participants (9)
-
Arasteh -
John Laprise -
Mueller, Milton L -
Nigel Roberts -
parminder -
Paul Rosenzweig -
Raphaël BEAUREGARD-LACROIX -
Schweighofer Erich -
Thiago Braz Jardim Oliveira