[governance] host country agreement + "geostrategic innocence"

[Jovan Kurbalija]

Here are a few comments on the latest discussion....


Modalities about a host country agreement can vary. The general trend is
towards the reduction of immunities in international affairs. The main
difference, when it comes to immunity, is between iure gestionis (private
acts of the entity) and iure imperii (the name was chosen with states in
mind - the function of the state in exercising its sovereign power; within
the current context we can "translate" this to a particular entity's
realisation of its core functions).

Let me bring this difference closer to our discussion. An internationalised
ICANN could have immunity (ICANN as an entity as well as directors of its
Board) in performing its core functions, e.g. running the root servers - a
host government would not be able to use legal tools to question ICANN's
decision on rote zone file, for example, or to overrule this decision (under
iure imperii). But when it comes to other acts - contracts, employment
arrangements, etc., ICANN would still have to observe national law (iure
gestionis).

I personally support the legal school of though that advocates a lower level
of immunities. Diplomats and international civil servants should be shielded
in performing their professional functions (immunity for activities), but
they should not have broad and blanket immunity. In practice, immunity has
already been reduced. Most diplomats are responsible and take care to
observe local laws (one obligation of the Vienna Convention on Diplomatic
Relations!).

All in all, "host country agreement" modalities can be adjusted to
particular needs/circumstances. 

When we discuss a possible host we may use the concept of "geostrategic
innocence" - a phrase coined by Diplo's senior fellow, Alex Sceberras
Trigona (the former Minister of Foreign Affairs of Malta). Among the
candidates for the title of the most "innocent" states are Finland, Austria,
Malta (neutral but members of EU), Costa Rica, Switzerland, pacific island
states, etc. 

Jovan




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