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<div class="moz-cite-prefix">On Thursday 11 June 2015 07:42 PM,
Michael Froomkin - U.Miami School of Law wrote:<br>
</div>
<blockquote
cite="mid:alpine.LRH.2.00.1506111005490.30188@post.law.miami.edu"
type="cite">Can you give me an example of what you consider a good
model for an 'international jurisdiction' application -- ideally
one where someone has succeeded with a human-rights based
challenge?
<br>
</blockquote>
<br>
Firstly, I am not sure why you ask this question because you
yourself agree that a non US citizen does not have much of a locus
standi with US courts on human rights and other public law matters.
So on one side there is near zero recourse, and no theoretical
possible of expanding it much either, and on other side there does
exist some international law and international procedure, however
limited, while the possibility is its expansion is unlimited, and
all in the hands of the world community, and it is its civil society
that should be lighting the path ahead on such high normative
matters. <br>
<br>
Meanwhile, very happy as I am to move faster towards a world
government, and I solicit good ideas for that, but till that
happens, it is still the nation states that bear the responsibility
of protecting people's human rights, and the same would be true for
ICANN related matters. <br>
<br>
This is clearly stated in the NetMundial Statement, and also a
recent statement of the Council of Europe on WSIS. <br>
<br>
And therefore much of general human right abuse by ICANN actions or
non actions will have to routed through state action at the
international level through international law and processes. At the
same time, well of course, whatever limited international human
rights related recourse that is currently available directly to the
people may be available for this - ICANN related - purpose as well,
and I am happy to work towards strengthening is, and instituting
more and better possibilities. To repeat, this is certainly more
that what is available to 95 percent of the world's population wrt
to the US courts. <br>
<br>
What putting ICANN under international law would do is that it will
safeguard the non US population of the world ( about 95 percent of
it) from abuse of their human rights by US courts and its executive
and legislative branches - whether on IP related matters (of which
so many cases are known), or denial of essential digital services,
as happening currently in Crimea, and so on... <br>
<br>
IANA transition has to be primarily about checking the possibility
of such abuses by the US by moving ICANN oversight to international
systems. <br>
<br>
<blockquote
cite="mid:alpine.LRH.2.00.1506111005490.30188@post.law.miami.edu"
type="cite">
<br>
I would also question the claim that no national jurisdiction
could be asked (or trusted) to undertake a stewardship role on
behalf of the international community. Saves reinventing the legal
wheel.
<br>
</blockquote>
<br>
As no dictator - however benevolent - can be trusted to undertake
the stewardship of public interest. A basic democratic proposition.
<br>
<br>
<blockquote
cite="mid:alpine.LRH.2.00.1506111005490.30188@post.law.miami.edu"
type="cite">
<br>
I just don't have much faith in the international tribunal option
because 1) it would take years to set up;</blockquote>
<br>
We have been saying this for 15 years now. Meanwhile important to
note that the International Criminal Court - prima facie a much more
complex outcome to achieve, was done over less than a decade of
negotiations. With the global Internet, there simply is no option,
the earlier we start in the right direction, the faster we will
reach. Otherwise we will keep hearing proposals like that of a back
up root servers system as enclosed, which will increasingly sound
very sensible to non US countries, starting with those which are not
its closest allies. Do remember that even India recently, at the ITU
plenipot, proposed a nationally bound system of domain names
resolution. So, as I said, in not allowing an appropriate
internationalisation of the ICANN we playing with fire, and will in
the medium to long term compromise the global architecture of the
Internet. <br>
<br>
<blockquote
cite="mid:alpine.LRH.2.00.1506111005490.30188@post.law.miami.edu"
type="cite"> 2) the lack of relevant international law would
create massive uncertainty; </blockquote>
<br>
We just have to get done to writing it. it is happening in many
other areas - which are much less 'inherently global' - it can
happen in this area as well. <br>
<br>
<blockquote
cite="mid:alpine.LRH.2.00.1506111005490.30188@post.law.miami.edu"
type="cite">3) cases would be even more costly than those in the
US or the like.
<br>
</blockquote>
<br>
First of all, for 95 percent there is more or less no recourse in
matters of public law or rights at all, and so the issue of costs
does not come up for them. And this global civil society group
cannot so disproportionately be worried about the US citizens alone.
<br>
<br>
parminder <br>
<blockquote
cite="mid:alpine.LRH.2.00.1506111005490.30188@post.law.miami.edu"
type="cite">
<br>
As regards your IP example below, I would only note that there are
meaningful differences between the IP laws of various states, and
that WIPO's view - which likely would dominate in an international
forum - is far more friendly to IP rights and less open to HR
claims than the US courts have shown themselves to be. Indeed, I
would have thought that WIPO's IP maximalist views were in
themselves proof that the international route was deeply suspect.
<br>
<br>
On Thu, 11 Jun 2015, parminder wrote:
<br>
<br>
<blockquote type="cite">
<br>
<br>
On Thursday 11 June 2015 04:41 AM, Michael Froomkin - U.Miami
School of Law wrote:
<br>
Just to head off a possible and no doubt unintentional
misunderstanding:
<br>
<br>
Non-US persons have recourse to US courts for many things,
including contractual
<br>
rights. Non-US persons located outside the US do not, in
the main, have the right to
<br>
make constitutional claims or defenses against the US
government. But since ICANN, or
<br>
New New Co., is not part of the US government, this is not
relevant.
<br>
<br>
<br>
As you confirm below, one can make make claims or sue with
respect mostly to private law violations,
<br>
like contractual deficiencies and the such, but not on public
law issues, and human rights issues.
<br>
It is the latter that is most important and the basis of my
argument for international jurisdiction
<br>
for ICANN (other than the important democratic principle that
whether any jurisdiction is open to be
<br>
employed by anyone or not, a given jurisdiction has to be one
which includes all affected persons as
<br>
democratic constituencies for determining and building that
jurisdiction, which all important
<br>
democratic aspect is strangely fully being side stepped in this
discussion. 'No governance/
<br>
jurisdiction without representation' which is almost exactly the
slogan on which the US fought for
<br>
its independence - it now needs to give a thought to those of
others too...)
<br>
<br>
You asked for an example of a problematic scenario, let me use
the one which I have lately used in a
<br>
few places. Excuse me to just cut paste from my earlier posting
to another list - to the Working
<br>
Group on ICANN Accountability, which btw took no note of it at
all:
<br>
<br>
(Quote from an earlier posting to another elist begins)
<br>
<br>
One need not even provide a scenario, but let me try it -
entirely hypothetical at this
<br>
stage, but extreme plausible. Sun Pharmaceuticals is an
Indian generic drugs company,
<br>
one of the world's largest, and providing drugs to most
developing countries, at a
<br>
fraction of the prices that patented drug equivalents are
available for . There is a lot
<br>
of literature on how Indian generic drug industry has
helped fight and stabilise the
<br>
AIDS situaton in Africa, and also with regard to other
diseases all over the world.
<br>
Meanwhile, US pharma industry with the backing of the US
government has employed all
<br>
possible means including those that are suspect from an
international law point of view
<br>
to thwart and weaken the Indian generic drugs industry for
reasons which are obvious --
<br>
including getting seized in international waters and
neutral protected global shipping
<br>
lanes supplies being shipped between two developing
countries in both of which the
<br>
transaction is perfectly legal (There is the famous case
of supplies being exported from
<br>
India to Brazil being seized off Netherlands's coast on US
gov's behest.) ... Just to
<br>
give an idea of how 'tense' things are in this area.
<br>
<br>
Now, extending the hypothetical, lets say that Sun Pharma
gets for itself a gtld
<br>
.Sunpharma (which btw if they ask me I'd advice them not
to bec of obvious dangers as
<br>
clear from the following).. and meanwhile extends its
global business to online
<br>
platforms, which is kind of the normal direction that
everything would go. .Sunpharma
<br>
then becomes or denotes the digital space where the
company does much of its global
<br>
business, including management of company's global affairs
and so on.
<br>
<br>
Meanwhile, one or the other Intellectual property (IP)
related flare up occurs, as
<br>
routinely does, and the US pharma industry cries foul over
certain global commerce
<br>
activities of Sun Pharma.... We are, say, in 2025 and
everything is so digitalised and
<br>
networked and so on, that the Sunpharma online space has
become basic to SunPharma's
<br>
international operations - it becomes the 'cloud' that
underpins the company's business
<br>
(which it has a right to do - meaning to be able to own
and leverage a global online
<br>
space under its own name and a trade name name derived
gtld). . US pharma approaches US
<br>
courts and seeks seizing of .Sunpharma as this asset is
made available and controlled
<br>
from within the US jurisdiction; and the court agrees and
accordingly directs ICANN....
<br>
The global DNS system practically unravels, at least its
global legitimacy does...
<br>
<br>
We know that US courts have many times been approached to
seize domain names that are
<br>
owned by outside groups and largely work outside the US,
and on many different kinds of
<br>
grounds as well. This is common knowledge and I will not
try to begin providing
<br>
examples. And this right of such seizures or to otherwise
being able to judge the
<br>
public interest nature of ICANN's work lies not only with
the US courts but also some
<br>
executive agencies like the Office of Foreign Assets
Control, and I am sure there must
<br>
be many more. I had earlier asked this particular stress
test to be applied but for no
<br>
clear reasons it never is. If we can cherry pick our
stress tests, they really are not
<br>
stress tests, whatever other purpose they might serve.
<br>
<br>
There is simply no solution to the problem of letting US
courts and US's empowered
<br>
executive agencies routinely judge and enforce their will
wrt the public interest impact
<br>
of ICANN's global governance activities than to
incorporate ICANN under international
<br>
law and get corresponding immunity from US domestic law. I
repeat, there is simply no
<br>
other way. Period.
<br>
<br>
Therefore if we indeed are worried about the role and
authority of US courts vis a vis
<br>
ICANN's global governance activities, lets be consistent.
I have held back commenting
<br>
here, because I see that the two key framing issues of
accountability - accountability
<br>
to which community/ public, and the issue of jurisdiction
- have simply been
<br>
sidestepped, and in default there is no meaning to
thrashing out minute details. "
<br>
<br>
<br>
(quote ends)
<br>
<br>
parminder
<br>
<br>
<br>
If a corporation is located in a US state, then it can be
sued there by **anyone*** from
<br>
***anywhere*** so long as they are in fact alleging facts
showing they were wronged by
<br>
it. In other words, the issue is what (mainly private
law) rights one might have to
<br>
assert, not whether the court will hear you due to your
citizenship or domicile or even
<br>
(if represented by counsel) location.
<br>
<br>
<br>
On Wed, 10 Jun 2015, Seth Johnson wrote:
<br>
<br>
On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango
<a class="moz-txt-link-rfc2396E" href="mailto:kichango@gmail.com"><kichango@gmail.com></a> wrote:
<br>
Simple and maybe trivial question, again
(since my previous one
<br>
about
<br>
delegation hasn't found a taker.)
<br>
<br>
Scenario 1*: I am a citizen of Togo, quite a
small country
<br>
sitting on the
<br>
belly of Africa to the west (you may check our
macro economic
<br>
indicators in
<br>
the CIA Facebook or from the World Bank online
sources.) I am a
<br>
domain name
<br>
registrant. In year 2018 ICANN makes a
decision, later upheld by
<br>
the
<br>
conflict resolution mechanism in place, but
which I think
<br>
violates my
<br>
fundamental rights as I understand them by any
international
<br>
standards. I am
<br>
even pretty convinced that I might win the
case in a US court
<br>
based on the
<br>
documentation available /jurisprudence in that
country. Problem
<br>
is, I have
<br>
no access to the institutional resources that
would allow me to
<br>
use the US
<br>
judicial system as a plaintiff, much less the
financial
<br>
resources it would
<br>
take to get a lawyer to represent my
interests.
<br>
<br>
Is that -- the need for everybody to be equal
before the law, in
<br>
practice,
<br>
and have their rights equally secured, -- in
your view, a
<br>
problem worthy of
<br>
our attention? If so how can we address it.
<br>
<br>
<br>
<br>
It is. But no, you would not have recourse to US
courts. The problem
<br>
for the international arena is that nobody has that
"trump card"
<br>
recourse that keeps governments in check *other
than* those who have a
<br>
claim that their own government is doing or allowing
things to happen
<br>
that violate their own fundamental rights as a
citizen. The kind of
<br>
rights you get internationally are really almost
what we call
<br>
statutory rights -- the problem being that the
"legislature" can
<br>
always rewrite those kinds of rights. Or, since in
fact going and
<br>
revising a treaty provision regarding rights poses
some political
<br>
difficulty, what you'll see more often is that the
rights expressed in
<br>
treaties have no more weight against things like
"national interests"
<br>
or "national security" or the "war on" x, y, and z
-- than a
<br>
"balancing standard." Governments can well do
whatever they say is
<br>
necessary (like vacuum up all communications for
surveillance, or for,
<br>
hey, regular spying) for their national interests
and they essentially
<br>
just "bear in mind" whatever rights are expressed in
treaties. And no
<br>
judge in an ostensible international tribunal can
really simply cancel
<br>
a treaty the way they can an unconstitutional law in
a national
<br>
context (without a clear founding act prior to the
government, where
<br>
the people(s) claim their priority and authorize
government(s) to
<br>
proceed only under certain limits). Treaties are
agreements among
<br>
governments, so what the governments "meant" is what
you have to
<br>
deliberate over in interpreting the treaties -- not
over whether the
<br>
people have rights regardless of the governments'
intention in the
<br>
treaty. A judge would at best weigh treaty elements
and try to
<br>
articulate how to settle all parts without saying
any part is
<br>
"unconstitutional." The problem is how to get the
closest you can to
<br>
that kind of a "trump card" standing for fundamental
rights.
<br>
<br>
An ostensible "constitution" among governments (like
the ITU's) has
<br>
the same problem. In general, the way the real
claim of priority of
<br>
the people and their rights happens is when the
people self-evidently
<br>
act to fill in the gap when a government is rendered
illegitimate (or
<br>
overthrown): acting independent of the
pre-established government to
<br>
select delegates to their own constitutional
convention, draft a
<br>
constitution, and then ratify it -- they thereby set
a definitive
<br>
historical register of the people setting limits
that the government
<br>
must thenceforth operate within to be legitimate.
This is called the
<br>
"constituent power." Historians point at
Massachusetts as the first
<br>
US colony/state to exercise the consttuent power
that way -- when the
<br>
towns rejected the state constitution the state
legislature had
<br>
written for them and insisted on having their own
constitutional
<br>
process. It was done by similar principles for the
US federal
<br>
constitution. That's how you get a fundamental
right "trump card."
<br>
<br>
If you have that, and it's exercised a few times
well or for a while,
<br>
then you have a situation where goverments are in
check -- they don't
<br>
overreach too obviously, or they test the boundaries
but they get
<br>
trumped by a judiciary that's rooted that way.
<br>
<br>
You posed the question of equal rights before the
law, in the
<br>
international context. I certainly do not advocate
a global
<br>
revolution where all the people(s) seize a moment to
stop their
<br>
governments and tell them how they may all proceed.
<br>
<br>
What I have tended to suggest is approaches that can
be interim
<br>
measures that tend towards the principles that we
want to have in
<br>
play, but which we can't yet quite have in play.
<br>
<br>
One approach that seems like a way towards that kind
of conception
<br>
might be: Imagine a bicameral "House of Rights" or
more narrowly an
<br>
"International Internet Communications Rights
Forum." It doesn't need
<br>
to say "Rights," though that's the point, so maybe
call it an
<br>
"Internet Stewards House." This is modeled like a
legislature, with a
<br>
house to represent countries equally, and another
house to represent
<br>
populations proportionally -- except it's not
empowered to write law
<br>
(or treaties), but rather to play the role of voting
to *veto* acts of
<br>
other (or some one or few other) intergovernmental
bodies that
<br>
actually do start enacting binding "legislation."
You might be able
<br>
to get freedom-loving countries to endorse
constructing something like
<br>
that, and while it's not as solid as court rulings
that keep all
<br>
lawlike activities in check more definitively, it
would be a solid
<br>
register of the priority of rights.
<br>
<br>
There are a lot of holes in that, but I think it
conveys something of
<br>
the kind of concerns and how they might be
approached that we should
<br>
really have in mind rather than blindly handing
things off to the
<br>
international arena (which is really *always*
"intergovernmental" --
<br>
governments are the entities that act there).
<br>
<br>
So, that's a sort of answer, stab at describing
things properly and
<br>
with some sort of practical conception. I don't
press specific
<br>
solutions though, just describe notions that I think
can give people a
<br>
better understanding of the real nature of the
difficulties and
<br>
problems involved.
<br>
<br>
Ponder that; you'll think of plenty of problems with
it. But the
<br>
important thing is this is a far more real
characterization of the
<br>
situation. And I describe an idea like this solely
to set a proper
<br>
stage for talking about things with a better sense
of what's going on.
<br>
Take it as a brainstorm. But also take it as a
reality check and a
<br>
call and challenge to try to define and understand
the situation
<br>
properly and well.
<br>
<br>
(The above line of exposition talks mostly about
governmental-related
<br>
issues. The issues brought by the corporate form
are a whole other
<br>
area that also needs fuller appreciation. And
really, we most want
<br>
not to be so governmental [even those of us
stressing the validity of
<br>
the role of government]; we want to just build our
Internet and let
<br>
that be mostly a discussion of how to solve problems
in a technical
<br>
way and one where our rights aren't on the line.)
<br>
<br>
See what you think of that.
<br>
<br>
<br>
Seth
<br>
<br>
Thanks
<br>
<br>
(*) I only have one scenario for now but I'm
numbering #1 just
<br>
in case
<br>
others come up later in the discussion.
<br>
<br>
/Brought to you by Mawaki's droid agent
<br>
<br>
On Jun 10, 2015 3:57 PM, "Seth Johnson"
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:seth.p.johnson@gmail.com"><seth.p.johnson@gmail.com></a> wrote:
<br>
<br>
I believe the most important focus is on
the
<br>
question of how to
<br>
install effective fundamental liberties
limits in
<br>
the context of an
<br>
international political forum. That's
how you can
<br>
hope to maintain
<br>
the type of stewardship context we want
associated
<br>
with a medium of
<br>
communication. The presence of recourse
of that
<br>
sort -- related to
<br>
being based in a national context -- is
one of the
<br>
main reasons why
<br>
ICANN has not gone further off the
rails. Same as
<br>
for government in
<br>
general in such a national context: we
don't get the
<br>
government
<br>
meddling specifically because the
relationship to
<br>
the national context
<br>
(via the bare presence of NTIA) means
the people (at
<br>
least of the US)
<br>
have recourse against it if it does.
<br>
<br>
Keep in mind that one of the chief
reasons why Obama
<br>
(and his
<br>
predecessor) have gone off the rails
with
<br>
surveillance and other
<br>
fundamental rights violations is because
they have
<br>
the notion that the
<br>
international arena provides means to
act that way
<br>
without the
<br>
recourse we have against it
domestically. There's
<br>
still the problem
<br>
of laundering the surveillance by having
private
<br>
corporations (whether
<br>
telco or app) do it on the government's
behalf. But
<br>
we see an effort
<br>
at long last to try to "legitimize" what
they're
<br>
doing that way at
<br>
least (more apparent effort to not
violate citizens
<br>
in the domestic
<br>
sphere), because we finally got standing
in the
<br>
courts, and
<br>
documentation that was taken seriously
via Snowden.
<br>
Still just
<br>
domestic, so that doesn't answer general
concerns,
<br>
but this should
<br>
highlight the nature of the problem.
You don't
<br>
actually have
<br>
fundamental rights in the international
arena, no
<br>
matter how many
<br>
human rights treaties you pass. That's
not what
<br>
secures rights
<br>
against acts of governments.
<br>
<br>
Note that this is stuff the UN has been
utterly
<br>
clueless about for
<br>
years and years and years, along with
many
<br>
followers-on. And I think
<br>
in general the parties who have been
acting in the
<br>
international arena
<br>
like it that way. We, the people(s),
are really the
<br>
ones to bring it
<br>
into the discourse in a real way, now
that we are
<br>
here in proceedings
<br>
that deign to appear to engage us
substantively in
<br>
international
<br>
policy.
<br>
<br>
<br>
Seth
<br>
<br>
On Wed, Jun 10, 2015 at 10:36 AM,
Michael Froomkin -
<br>
U.Miami School of
<br>
Law <a class="moz-txt-link-rfc2396E" href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a>
wrote:
<br>
On Wed, 10 Jun 2015, Chris Prince
<br>
Udochukwu Njoku wrote:
<br>
<br>
<br>
Parminder is emphasizing a
<br>
true point. An organization
<br>
which represents
<br>
the
<br>
interests of many nations,
<br>
though located in one nation
<br>
(as it must be)
<br>
must
<br>
not be subjected to laws
<br>
that ought to be (and are)
<br>
for national
<br>
<br>
<br>
<br>
It is, I think, possible to act as
a
<br>
trustee of international interests
<br>
while still having accountability
rooted
<br>
in national law. It may not be
<br>
possible to accommodate the
desires of
<br>
governments to, in effect, serve
<br>
directly on the governing body
given the
<br>
view of e.g. the Brazilian
<br>
government that this is
unacceptable
<br>
subordination to another state,
but
<br>
some may see that as a feature
rather
<br>
than a bug.
<br>
<br>
<br>
organizations. This should
<br>
be the definition of
<br>
international
<br>
jurisdiction
<br>
here. If the host nation's
<br>
laws don't actually
<br>
accommodate the
<br>
multinational
<br>
stakeholding nature of the
<br>
organization, it's a ripe
<br>
clue to the need
<br>
for
<br>
relocation to a place that
<br>
is more friendly to the
<br>
organization's
<br>
operations.
<br>
<br>
<br>
The above contains a term that (to
a
<br>
lawyer) has multiple possible
<br>
meanings.
<br>
The traditional way to "
accommodate the
<br>
multinational ... nature" of an
<br>
organization is to incorporate it
in
<br>
Switzerland, and have no effective
<br>
supervision. FIFA. IOC. No
thanks.
<br>
<br>
So I would ask, what is the threat
model
<br>
here? What is a (mildly
<br>
realistic)
<br>
example of a scenario in which one
fears
<br>
the entity will do something
<br>
legitimate and a national court
(of the
<br>
US, Canada, the nation of your
<br>
choice) would have an appreciable
chance
<br>
of blocking it? I would note,
<br>
for
<br>
example, that the only time I can
think
<br>
of that a US court overruled
<br>
ICANN
<br>
was when it froze out one of its
own
<br>
directors because the staff
<br>
disagreed
<br>
with his views. That violated
<br>
California law empowering
directors not
<br>
to
<br>
mention any sense of natural
justice.
<br>
The result was not only just, it
<br>
was
<br>
necessary. And it is Exhibit A as
to
<br>
why we cannot simply trust in
<br>
ICANN,
<br>
or New New Co's, good faith.
<br>
<br>
In other words, I submit that
national
<br>
court supervision in an
<br>
appropriate
<br>
and democratic jurisdiction is
far, far
<br>
more likely to produce good
<br>
outcomes
<br>
than bad ones, while the removal
of this
<br>
valuable check is almost
<br>
certain to
<br>
lead to difficulties. What is
more,
<br>
those difficulties will not be
<br>
prevented by having the body be
<br>
"international" for any currently
known
<br>
meaning of the term.
<br>
<br>
Contrary to other messages in this
<br>
thread, I do not believe that
there
<br>
is
<br>
much in the way of effective
monitoring
<br>
of many multi-national treaty
<br>
bodies
<br>
other than by action of the member
<br>
states. No one else has much real
<br>
leverage over WIPO, GATT, you name
it.
<br>
NGOs have some moral and
<br>
intellectual suasion, but some of
their
<br>
clout also comes from the fact
<br>
that
<br>
it influences or might influence
the
<br>
members.
<br>
<br>
I prefer to attempt to engineer a
much
<br>
surer means of dealing with major
<br>
and
<br>
substantially foreseeable
problems.
<br>
<br>
<br>
On Jun 10, 2015 11:27 AM,
<br>
"parminder"
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:parminder@itforchange.net"><parminder@itforchange.net></a>
<br>
wrote:
<br>
<br>
<br>
On Tuesday 09 June
<br>
2015 09:09 PM, Michael
<br>
Froomkin - U.Miami
<br>
School of
<br>
Law wrote:
<br>
> On Tue, 9 Jun
2015,
<br>
parminder wrote:
<br>
>
<br>
>> Are you saying
that
<br>
it is not possible for ICANN
<br>
to undertake
<br>
the
<br>
>> functions that
it
<br>
needs to
<br>
>> undertake
while
<br>
being an international
<br>
institution
<br>
incorporated under
<br>
>> international
law,
<br>
and free
<br>
>> from any
countries
<br>
jurisdiction in terms of its
<br>
basic
<br>
governance
<br>
>> functions? I
just
<br>
want to be clear.
<br>
>
<br>
> I don't know what
an
<br>
"an international
<br>
institution
<br>
incorporated under
<br>
> international law"
is
<br>
except bodies like FIFA
<br>
(under Swiss
<br>
law), or UN
<br>
> bodies, or sui
<br>
generis treaty bodies. It
<br>
is certainly
<br>
*possible* for
<br>
> ICANN to have any
of
<br>
those statuses and to
<br>
"function"; as far
<br>
as I can
<br>
> tell, however,
it's
<br>
just not possible to build
<br>
in meaningful
<br>
> accountability in
<br>
those structures.
<br>
<br>
There are of course
<br>
problems and issues
<br>
everywhere, but it can
<br>
hardly be
<br>
said that UN and/or
<br>
treaty bodies work without
<br>
meaningful
<br>
accountability.
<br>
Further, any new
<br>
international treaty/ law
<br>
establishing
<br>
a new body - an really
<br>
international ICANN for
<br>
instance - can
<br>
write all
<br>
the accountability
<br>
method it or we want to have
<br>
written in it.
<br>
>
<br>
> There is no
general
<br>
international law of
<br>
incorporation of
<br>
which I am
<br>
> aware. Corporate
<br>
(formation) law is all
<br>
national law. That
<br>
is the
<br>
> reality that must
be
<br>
confronted. There is no
<br>
place I can go
<br>
to get an
<br>
> international
<br>
corporate charter, and good
<br>
thing too - why
<br>
should I be
<br>
> able to exempt
myself
<br>
from national law?
<br>
<br>
This hits a
<br>
fundamental issue - I see
<br>
ICANN, in its ideal form,
<br>
as a
<br>
governance body, since
<br>
it does governance
<br>
functions, and not as
<br>
a
<br>
private corporation.
<br>
So we need a new
<br>
international treaty
<br>
sanctifying
<br>
ICANN as a global
<br>
governance body - with its
<br>
basic forms largely
<br>
unchanged, with new
<br>
accountability means
<br>
(including judicial
<br>
accountability) and
<br>
not ways to be able
<br>
incorporate a private
<br>
kind of an
<br>
entity outside
<br>
national laws, which is
<br>
admittedly both very
<br>
difficult,
<br>
and rather
<br>
undesirable.
<br>
<br>
parminder
<br>
<br>
>
<br>
>>
<br>
>> If so, that
would be
<br>
an interesting assertion.
<br>
Now, I am sure
<br>
this is
<br>
>> not true.
However, I
<br>
am not an
<br>
>> international
legal
<br>
expert and not able to right
<br>
now build
<br>
and
<br>
>> present the
whole
<br>
scenario for you on
<br>
>> how it can be
done.
<br>
I am sure there are a number
<br>
of
<br>
international
<br>
>> organisations
that
<br>
do different
<br>
>> kind of
complex
<br>
activities and have found
<br>
ways to do it under
<br>
>> international
law
<br>
and jurisdiction.
<br>
>
<br>
> But those are in
the
<br>
main treaty bodies.
<br>
>
<br>
>> And if some
new
<br>
directions and evolutions
<br>
are needed that can
<br>
also be
<br>
>> worked out
(please
<br>
see my last
<br>
>> email on this
<br>
count).
<br>
>>
<br>
>
<br>
> Here we just
<br>
disagree. I see the task as
<br>
monsterously hard,
<br>
the work
<br>
> of a decade or
more.
<br>
>
<br>
>> BTW it is a
sad
<br>
statement on the geo
<br>
political economy of
<br>
knowledge
<br>
>> production in
this
<br>
area that
<br>
>> there is not
one
<br>
full fledged scenario
<br>
developed by anyone on
<br>
how
<br>
>> ICANN can
undertakes
<br>
its
<br>
>> activities
under
<br>
international law/
<br>
jurisdiction - which I am
<br>
pretty
<br>
>> sure it can.
Many
<br>
parties,
<br>
>> including
<br>
governments have called for
<br>
it, and yes I agree
<br>
someone
<br>
>> should come up
with
<br>
a full
<br>
>> politico-legal
and
<br>
institutional description of
<br>
how it can
<br>
and should
<br>
>> be done - with
all
<br>
the details
<br>
>> in place. And
that
<br>
is the sad part of it, of
<br>
how things stand
<br>
at the
<br>
>> global level,
had
<br>
now lopsided
<br>
>> is resource
<br>
distribution, all kinds of
<br>
resources.
<br>
>>
<br>
>
<br>
> Alas.
<br>
>
<br>
>> Not to shy
away from
<br>
responsibility - I am happy
<br>
to
<br>
collaborate with
<br>
>> anyone if
someone
<br>
can out time
<br>
>> into it.
<br>
>>
<br>
>> And no, it
cannot be
<br>
solved by any other country
<br>
jurisdiction. Apart
<br>
>> from it being
still
<br>
being wrong
<br>
>> in principle,
how
<br>
would US accept that another
<br>
jurisdiction
<br>
is better
<br>
>> than its own
and
<br>
accede to
<br>
>> such a change.
<br>
Accepting the patently
<br>
justified fact that an
<br>
>> international
<br>
infrastructure should be
<br>
>> governed
<br>
internationally, on the
<br>
other hand, is much easier .
<br>
>>
<br>
>
<br>
> I would not
dismiss
<br>
this so quickly. I take a
<br>
substantial
<br>
fraction of
<br>
> the opposition to
US
<br>
residual control (for that
<br>
is all we are
<br>
talking
<br>
> about) to be tied
to
<br>
the US's status as defacto
<br>
hegemon.
<br>
Moving ICANN
<br>
> to another state
with
<br>
a strong human rights record
<br>
would
<br>
answer that
<br>
> part of the
critique.
<br>
>
<br>
> In my view, a
bespoke
<br>
international structure is
<br>
actually much
<br>
harder
<br>
> -- it would need
to
<br>
be invented almost from
<br>
scratch. And it
<br>
is bound
<br>
> to be flawed;
<br>
national rules are the
<br>
result of at least
<br>
decades if not
<br>
> more of trial and
<br>
error.
<br>
>
<br>
>> parminder
<br>
>>
<br>
>> On Tuesday 09
June
<br>
2015 07:31 PM, Michael
<br>
Froomkin - U.Miami
<br>
School
<br>
>> of Law wrote:
<br>
>> I don't
know
<br>
what it means to say that
<br>
ICANN should be
<br>
subject
<br>
>> to
"international
<br>
>>
jurisdiction
<br>
and law". For the relevant
<br>
issues, that
<br>
sounds
<br>
>> like a pretty
empty
<br>
set.
<br>
>>
<br>
>> As
regards
<br>
most of the sort of things
<br>
one might expect
<br>
to worry
<br>
>> about - e.g.
<br>
fidelity to
<br>
>> articles
of
<br>
incorporation -
<br>
international law is
<br>
basically
<br>
>> silent. And
there
<br>
is no
<br>
>> relevant
<br>
jurisdiction either. So I
<br>
remain stuck in the
<br>
>> position that
there
<br>
must be a
<br>
>> state
anchor
<br>
whose courts are given the
<br>
job. It does
<br>
not of
<br>
>> course need to
be
<br>
the US,
<br>
>> although
I
<br>
would note that the US
<br>
courts are by
<br>
international
<br>
>> standards not
shy
<br>
and
<br>
>> actually
<br>
fairly good at this sort of
<br>
thing.
<br>
>>
<br>
>> I do
think,
<br>
however, that it should NOT
<br>
be Switzerland,
<br>
as its
<br>
>> courts are
<br>
historically
<br>
>>
<br>
over-deferential to
<br>
international bodies -
<br>
perhaps as
<br>
part of
<br>
>> state policy
to be
<br>
an
<br>
>>
attractive
<br>
location for those
<br>
high-spending
<br>
international
<br>
>> meetings.
<br>
>>
<br>
>> I'd be
real
<br>
happy with Canada, though.
<br>
>>
<br>
>> On Tue,
9 Jun
<br>
2015, parminder wrote:
<br>
>>
<br>
>>
<br>
>>
<br>
>> On
<br>
Tuesday 09 June 2015 06:26
<br>
PM, Michael
<br>
Froomkin -
<br>
>> U.Miami School
of
<br>
Law
<br>
>>
wrote:
<br>
>>
<br>
>> I
<br>
think that bodies which do
<br>
not need to
<br>
fear
<br>
>> supervision by
<br>
>>
<br>
legitimate courts end up
<br>
>>
<br>
like FIFA. FIFA had a legal
<br>
status in
<br>
Switzerland
<br>
>> that basically
<br>
>>
<br>
insulated it the way
<br>
>>
<br>
that the Brazilian document
<br>
seems to
<br>
suggest would
<br>
>> be what they
want
<br>
>>
for
<br>
ICANN. (It's
<br>
>>
<br>
also the legal status ICANN
<br>
has at times
<br>
suggested
<br>
>> it would
like.)
<br>
>>
<br>
>>
<br>
The lesson of history seems
<br>
unusually clear
<br>
here.
<br>
>>
<br>
>>
<br>
>>
Agree
<br>
that ICANN cannot be left
<br>
jurisdictionally
<br>
>> un-supervised
- that
<br>
may be
<br>
>>
even
<br>
more dangerous
<br>
>>
than the
<br>
present situation. However,
<br>
the right
<br>
>> supervision or
<br>
oversight is
<br>
>> of
<br>
international
<br>
>>
<br>
jurisdiction and law, not
<br>
that of the US . This
<br>
is what
<br>
>> Brazil has to
make
<br>
>>
upfront
<br>
as the
<br>
>>
<br>
implication of what it is
<br>
really seeking, and its
<br>
shyness
<br>
>> and reticence
to
<br>
>>
say so
<br>
is what I noted as
<br>
>>
<br>
surprising in an earlier
<br>
email in this thread.
<br>
Not
<br>
>> putting out
clearly
<br>
what
<br>
>>
exactly
<br>
it wants would
<br>
>>
lead to
<br>
misconceptions about its
<br>
position, which
<br>
IMHO can
<br>
>> be seen from
how
<br>
>>
Michael
<br>
reads it. I am
<br>
>>
sure
<br>
this is not how Brazil meant
<br>
it - to free
<br>
ICANN from
<br>
>> all kinds of
<br>
>>
<br>
jurisdictional oversight
<br>
>>
<br>
whatsoever - but then Brazil
<br>
needs to say clearly
<br>
what is
<br>
>> it that it
wants,
<br>
>>
and how
<br>
can it can
<br>
>>
<br>
obtained. Brazil, please
<br>
come out of your
<br>
NetMundial
<br>
>> hangover and
take
<br>
>>
<br>
political responsibility for
<br>
>>
what you
<br>
say and seek!
<br>
>>
<br>
>>
<br>
parminder
<br>
>>
<br>
>>
<br>
>>
<br>
>> On
<br>
Tue, 9 Jun 2015, Mawaki
<br>
Chango wrote:
<br>
>>
<br>
>>
<br>
<br>
>>
<br>
It's good to see a law
<br>
scholar
<br>
involved in
<br>
>> this
discussion.
<br>
I'll
<br>
>>
leave it
<br>
to
<br>
<br>
>>
<br>
the Brazilian party to
<br>
<br>
>>
<br>
ultimate tell whether your
<br>
reading is
<br>
correct
<br>
>> or not. In the
<br>
>>
meantime
<br>
I'd
<br>
<br>
>>
<br>
volunteer the following
<br>
<br>
>>
<br>
comments.
<br>
>>
<br>
<br>
>>
<br>
On Jun 8, 2015 10:46 PM,
<br>
"Michael
<br>
Froomkin -
<br>
>> U.Miami School
of
<br>
>>
Law"
<br>
<br>
>>
<br>
<a class="moz-txt-link-rfc2396E" href="mailto:froomkin@law.miami.edu"><froomkin@law.miami.edu></a>
<br>
wrote:
<br>
<br>
>> >
<br>
<br>
>> >
<br>
Perhaps I'm misreading
<br>
something,
<br>
but I
<br>
>> read this
document
<br>
to
<br>
>>
make the
<br>
<br>
>>
<br>
following assertions:
<br>
<br>
>> >
<br>
<br>
>> >
<br>
1. All restrictions on
<br>
ICANN's
<br>
location
<br>
>> must be
removed.
<br>
<br>
>> >
<br>
>>
<br>
<br>
>>
<br>
And the question reopened
<br>
for
<br>
deliberation by
<br>
>> all
stakeholders,
<br>
>>
<br>
including
<br>
<br>
>>
<br>
governments among others.
<br>
<br>
>>
<br>
Only the outcome of such
<br>
deliberation
<br>
will be
<br>
>> fully
legitimate
<br>
>>
within
<br>
the
<br>
<br>
>>
<br>
framework of the post-2015
<br>
<br>
>>
<br>
ICANN.
<br>
>>
<br>
<br>
>> >
<br>
2. ICANN does not have to
<br>
leave the
<br>
US but
<br>
>> must be
located in
<br>
>> a
place
<br>
<br>
>>
<br>
where the governing law has
<br>
<br>
>>
<br>
certain characteristics,
<br>
including
<br>
not having
<br>
>> the
possibiliity
<br>
>>
that
<br>
courts
<br>
<br>
>>
<br>
overrule ICANN (or at
<br>
<br>
>>
<br>
least the IRP).
<br>
<br>
>> >
<br>
<br>
>> >
<br>
(And, as it happens, the US
<br>
is not
<br>
such a
<br>
>> place....)
<br>
<br>
>> >
<br>
>>
<br>
<br>
>>
<br>
Not only avoiding courts
<br>
overruling
<br>
relevant
<br>
>> outcomes of
the
<br>
>>
Internet
<br>
global
<br>
<br>
>>
<br>
community processes,
<br>
<br>
>>
<br>
but also examining and
<br>
resolving the
<br>
possible
<br>
>>
<br>
interferences/conflicts that
<br>
<br>
>>
<br>
might arise for
<br>
<br>
>>
<br>
government representatives
<br>
being
<br>
subject to a
<br>
>> foreign
country
<br>
>>
law
<br>
simply in
<br>
<br>
>>
<br>
the process of attending
<br>
<br>
>>
<br>
to their regular duties (if
<br>
they were
<br>
to be
<br>
>> fully engaged
with
<br>
>>
ICANN).
<br>
>>
<br>
<br>
>>
<br>
Quote:
<br>
>>
<br>
>>
<br>
>> "From the
Brazilian
<br>
perspective the existing
<br>
structure
<br>
clearly imposes limits
<br>
to the participation
<br>
>>
<br>
>>
<br>
>> ???of
<br>
governmental
<br>
representatives, as it is
<br>
unlikely
<br>
that a representative
<br>
of a foreign government
<br>
>> w
<br>
>> i
<br>
>> ll be
authorized (by
<br>
its own government) to
<br>
formally accept a
<br>
position in a body
<br>
pertaining to a U.
<br>
>>
<br>
>>
<br>
>>
<br>
<br>
>>
<br>
S. corporation."
<br>
>>
<br>
<br>
>>
<br>
This may be what you're
<br>
getting at
<br>
with your
<br>
>> point 3 below,
but
<br>
>>
I'm not
<br>
sure
<br>
<br>
>>
<br>
whether the problem is
<br>
<br>
>>
<br>
only the fact that
<br>
governments have
<br>
to deal
<br>
>> with a
corporate
<br>
>>
form/law
<br>
or
<br>
<br>
>>
<br>
whether it is altogether
<br>
<br>
>>
<br>
the fact that it is a single
<br>
country
<br>
law
<br>
>> without any
form of
<br>
>>
<br>
deliberate
<br>
<br>
>>
<br>
endorsement by the other
<br>
<br>
>>
<br>
governments (who also have
<br>
law making
<br>
power
<br>
>> in their
respective
<br>
>>
country
<br>
just
<br>
<br>
>>
<br>
as the US government).
<br>
>>
<br>
<br>
>>
<br>
Assuming your reading is
<br>
correct, and
<br>
if
<br>
>> necessary
<br>
complemented
<br>
>> by
my
<br>
<br>
>>
<br>
remarks above, I'd be
<br>
<br>
>>
<br>
interested in hearing from
<br>
you about
<br>
any
<br>
>> issues you may
see
<br>
with
<br>
>>
the BR
<br>
gov
<br>
<br>
>>
<br>
comments.
<br>
<br>
>>
<br>
Thanks,
<br>
>>
<br>
<br>
>>
<br>
Mawaki
<br>
>>
<br>
<br>
>> >
<br>
<br>
>> >
<br>
3. ICANN doesn't have to
<br>
change its
<br>
form,
<br>
>> but it needs a
form
<br>
>>
where
<br>
<br>
>>
<br>
governments are comfortable.
<br>
<br>
>> >
<br>
<br>
>> >
<br>
(And, as it happens, the
<br>
corporate
<br>
form is
<br>
>> not such a
<br>
>>
<br>
form....)
<br>
<br>
>> >
<br>
<br>
>> >
<br>
<br>
>> >
<br>
What am I missing?
<br>
<br>
>> >
<br>
<br>
>> >
<br>
<br>
>> >
<br>
<br>
>> >
<br>
On Sat, 6 Jun 2015, Carlos
<br>
A.
<br>
Afonso wrote:
<br>
<br>
>> >
<br>
<br>
>> >>
<br>
For the ones who are
<br>
following the
<br>
IANA
<br>
>> transition
process:
<br>
>>
attached
<br>
<br>
>> >>
<br>
please find the comments
<br>
posted by
<br>
the
<br>
>> government of
Brazil
<br>
>> on
June
<br>
03,
<br>
<br>
>> >>
<br>
2015, in response to the
<br>
call for
<br>
public
<br>
>> comments on
the
<br>
<br>
>> >>
<br>
CCWG-Accountability Initial
<br>
Draft
<br>
Proposal.
<br>
<br>
>> >>
<br>
<br>
>> >>
<br>
I generally agree with the
<br>
comments.
<br>
<br>
>> >>
<br>
<br>
>> >>
<br>
fraternal regards
<br>
<br>
>> >>
<br>
<br>
>> >>
<br>
--c.a.
<br>
<br>
>> >>
<br>
<br>
>> >
<br>
<br>
>> >
<br>
--
<br>
<br>
>> >
<br>
A. Michael Froomkin,
<br>
<a class="moz-txt-link-freetext" href="http://law.tm">http://law.tm</a>
<br>
<br>
>> >
<br>
Laurie Silvers &
Mitchell
<br>
Rubenstein
<br>
>> Distinguished
<br>
Professor
<br>
>> of
Law
<br>
<br>
>> >
<br>
Editor, Jotwell: The Journal
<br>
of
<br>
Things We
<br>
>> Like (Lots),
<br>
>>
<br>
jotwell.com
<br>
<br>
>> >
<br>
Program Chair, We Robot 2016
<br>
| +1
<br>
(305)
<br>
>> 284-4285 |
<br>
>>
<br>
<a class="moz-txt-link-abbreviated" href="mailto:froomkin@law.tm">froomkin@law.tm</a>
<br>
<br>
>> >
<br>
U. Miami School of Law, P.O.
<br>
Box
<br>
248087,
<br>
>> Coral Gables,
FL
<br>
>>
33124
<br>
USA
<br>
<br>
>>
<br>
>
<br>
-->It's
<br>
warm here.<--
<br>
<br>
>> >
<br>
>>
<br>
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A. Michael Froomkin, <a class="moz-txt-link-freetext" href="http://law.tm">http://law.tm</a>
<br>
Laurie Silvers & Mitchell
Rubenstein
<br>
Distinguished Professor of Law
<br>
Editor, Jotwell: The Journal of
Things
<br>
We Like (Lots), jotwell.com
<br>
Program Chair, We Robot 2016 | +1
(305)
<br>
284-4285 | <a class="moz-txt-link-abbreviated" href="mailto:froomkin@law.tm">froomkin@law.tm</a>
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<pre wrap="">____________________________________________________________
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