[governance] oversight

[Laina Raveendran Greene]

Dear Wolfgang,

Yes, the gTLD MOU was in some way something new although not totally so. In
any case, the gTLD MOU had no impact on the USG when they set up ICANN. By
the way, another example of such an MOU is seen with the MOU on GMPCS
(Global Mobile Personal Communicaions Services, and again its impact has yet
to be seen.

There is no clear legal significance of such as "MOU"s other than it falls
under "soft law". MOUs in general are usually considered non-binding. MOUs
however like UN resolutions (which are also non binding), are "evidence" of
"customary international law" i.e. it is plays an evidentiary role to show
that countries consider it as binding. To be "evidentiary" however, there
needs to be more than one resolution or MOU of such to show that countries
consider it customary international law. 

Private and public international law intersections have been happening for a
while now, especially with satellites, MNCs working cross border, etc etc,
and it is constantly being shaped. The US however has not been know at
forefront of embracing such changes.  Law of the Sea, etc tried to use
"common heritage of mankind" principle of "trusteeship" to set up an
"authority" to regulate on behalf of mankind, but the US has resisted these
ideas.

Ultimately, I think IF the move of WSIS is going along the compromise of
keeping stability on resource mangement, and thus working on improving ICANN
for resource management (leaving other issues under the followup and
implementation process) as opposed to create something new, then we should
look a little closer into the concept introduced by the IG caucus on "host
country agreement". 

Understanding the problem we are trying to solve, what does this mean-- is
it offering it immunity from US law or ensuring not just the USG have
jurisdiction, i.e some form of  "international law" applies over and above
US law. Here it is where we could learn from lessons on how the UN was set
up in the US, how INTELSAT was created back in the 60s to make it
"international" yet not totally under "governmental rule" (governments
played more of a strategic role or advisory role as opposed to a operations
role), etc etc. 

If there are any experts on the formation of these types of new forms of
"international bodies" and how they were created in the US in the past, it
would be helpful. For example, what is the process to have whatever is
agreed upon at WSIS, be accepted in the US. How are we to ensure whatever
done at WSIS may not require further ratification, or can be overuled by
Congress or Senate or should we be keeping this in mind as we design the
solution. Do any solution require an Executive agreement between the new
body and the USG, and what are the current forms of creating "international
bodies" in the US or outside for that matter. 

Learning from the past as we map the future could help. It would also be
helpful to understand if we should be considering other countries as well,
and are there any other countries with better precedence on creating new
forms of international bodies,which we should also consider.

Bottom line, for sure, a California 501 (c) corporation, which ICANN is now
alone is not acceptable (from what I understand,one of the main form of
recourse if one is dissatisfied with ICANN, is to make complaints to the US
attorney general, who then decides whether to take up the case). 

Should we therefore  be focusing on how to make ICANN  more of an
"international body" at least from the resource management part of the IG
debate.

Just to add some thoughts to this discussion.

Laina

 

-----Original Message-----
From: governance-bounces at lists.cpsr.org
[mailto:governance-bounces at lists.cpsr.org] On Behalf Of Vittorio Bertola
Sent: Sunday, October 16, 2005 5:30 PM
To: Wolfgang Kleinwächter
Cc: governance at lists.cpsr.org; Lee McKnight
Subject: Re: [governance] oversight

Wolfgang Kleinwächter ha scritto:
> The gTLD MoU of the IAHC was signed both by governmental and
non-governmental entities. Pekka tarjanne, Secretary General of the ITU,
labeld this as a "turning point in internaitonal law". But this was 1997
:-(((.

I imagine this approach could work, for example, for a "contract" 
related to the management of the root zone, where there is a limited and
well identified number of non-gov entities involved.

But how would you do that for more general agreements that involve the
entire private sector and civil society, such as the one establishing the
forum?
-- 
vb.             [Vittorio Bertola - v.bertola [a] bertola.eu.org]<-----
http://bertola.eu.org/  <- Prima o poi...
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