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<font face="Verdana">Dear Pranesh,<br>
<br>
Thanks for your response. Before I respond to the specific issues
raised by you let me state the larger context of what I see as
being discussed here. Since you do mention in your email about
'not giving up the quest for alternatives' I see three alternative
positions that are emerging.<br>
<br>
(1) Meaningful internationalisation of ICANN is not possible.
Milton takes this view with some sympathy from Lee. I saw your
questions in the two mails you sent as expressing grave doubts
about possibilities of meaningful internationalisation. But if
that is not what you are expressing, it is very fine. (With </font><font
face="Verdana">meaningful internationalisation I mean not only
that US pulls itself out of the loop of the decision making on
root changes, but also that ICANN's decisions, of root change, or
</font><font face="Verdana">related to its policies </font><font
face="Verdana">etc , </font>are not subject to any kind of post
facto review either by US courts or US executive authority. )<br>
<br>
(2) ICANN should be internationalised without imposing any new
oversight authority replacing US gov's. Ian and Avri have strongly
supported this position, and apparently the ICANN plus system itself
wants this to happen, and have made representations to this end. (I
am not sure whether those holding this position think that some
international law will be needed for any such internationalisation
or not. And if not, how would any internationalisation of this kind
be 'meaningful'. The proponents of this view may want to clarify)<br>
<br>
(3) (This is ITfC's position) ICANN's internationalisation will
require it to be incorporated under international law and we need to
find out how such a law will be arrived at. We think that an
external international oversight mechanism of some kind is also
necessary, although any such mechanism should have a very clearly
circumscribed and minimal role, and should employ innovations in its
manner of constitution - not going the typical UN kind of gov
representation role, but employing some kind of regional process of
selection, maybe taking people from public tech institutes or
professional associations etc.... <br>
<br>
<font face="Verdana">Now to the points in your email.<br>
<br>
</font>
<div class="moz-cite-prefix">On Thursday 20 September 2012 03:24 AM,
Pranesh Prakash wrote:<br>
</div>
<blockquote cite="mid:505A3F1B.2090803@cis-india.org" type="cite">parminder
[2012-09-11 23:52]:
<br>
<blockquote type="cite">snip<br>
</blockquote>
<br>
There's a difference between WIPO and ICANN. <br>
</blockquote>
<br>
Yes, there are differences. But what I am pointing to is the
similarity between WIPO and a possibly internationalised ICANN. It
is about the fact that the global policies that WIPO makes are not
subject to review by Switzerland's courts or government. Right!. In
the case of ICANN, its global policies are subject to such reviews
at present. The protection or immunity we want under an
international law is to make sure that ICANN's global decisions
cannot be reviewed and thus struck down by US courts/ government. Do
tell me why such protection/ immunities available to WIPO's policy
making process and outcomes against review/ interference by local
jurisdictions are not possible to be made available under
international law to ICANN's global policies and other actions. <br>
<br>
<blockquote cite="mid:505A3F1B.2090803@cis-india.org" type="cite">Almost
none of WIPO's decisions are self-executing: </blockquote>
<br>
Yes this is a difference. As we all know Internet is indeed
different as a unitary infrastructure for the world. And if we want
to protect both such globalness of it, and political principles that
we hold dear like democracy and the such, we need to be ready to get
into innovative thinking that meets both these important objectives
rather than jettison one for the other. <br>
<br>
Going into the operational details, I dont see what is the problem
if ICANN, duly protected by international law, was to make changes
in the authoritative root zone server, located in its protected
premises, and US under the same international law being obligated to
give safe passage to these changes from ICANN servers to the root
servers outside the US. If the US, exercising its legitimate
jurisdiction over root servers and other infrastructure located
within its jurisdiction does not want these changes to apply in the
US territory, it will be well within its legitimate power to can
take action at that level.<br>
<br>
Therefore, I see no problem with making, what you call as, the
self-executing functions of ICANN immune to US jurisdiction under an
appropriate international law. <br>
<br>
snip<br>
<blockquote cite="mid:505A3F1B.2090803@cis-india.org" type="cite">
<br>
And for what it's worth, WIPO *is* subject to Swiss laws on
everything from fire safety onwards. <br>
</blockquote>
<br>
Yes, these are the kind of things that host country arrangements
deal with. Nothing new, and does not change anything. We are not
asking ICANN to be immune from fire safely regulation, or other
building regulations and also a host of other things as well. That
would be quite silly to ask, and therefore no one does. <br>
. <br>
<blockquote cite="mid:505A3F1B.2090803@cis-india.org" type="cite">
And for what it's worth, the decision by the WIPO secretariat to
provide technological support in the form of computers to Iran and
North Korea, inter alia, to upgrade their patent offices has come
under the scrutiny of the American Congress for provision of
dual-use technology — whether rightly or wrongly so.
<br>
</blockquote>
<br>
The controversy was whether WIPO is following UN sanctions or not,
and not whether it was following US law or not....<br>
<blockquote cite="mid:505A3F1B.2090803@cis-india.org" type="cite">
<br>
<blockquote type="cite">Do I take from your framing of the above
question that, therefore, you are
<br>
fine for a global governance institution like ICANN to be
subject to US's
<br>
law and jurisdiction in terms of its substantive governance
activities?
<br>
</blockquote>
</blockquote>
<br>
<blockquote cite="mid:505A3F1B.2090803@cis-india.org" type="cite">
<br>
A question isn't an argument, and people's view are often more
complicated than binaries. Testing the alternatives' worthiness
doesn't mean giving up on the quest to find viable alternatives.
<br>
</blockquote>
<br>
Sure. Neither posing counter questions should be considered wrong.
It is very much the tradition of political discussions to explore
linkages of any position/ question to possible political stances
that it may appear to be aliening with. <br>
<br>
regards,<br>
<br>
parminder <br>
<br>
<br>
<br>
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