[governance] Updated version of oversight stmt.

[William Drake]

Morning, Milton,

> -----Original Message-----
> From: governance-bounces at lists.cpsr.org
> [mailto:governance-bounces at lists.cpsr.org]On Behalf Of Milton Mueller

> Nope. Not correct.
> http://www.icann.org/general/archive-bylaws/bylaws-08apr05.htm
> There is a provision that says that ICANN ccTLD policies cannot
> conflict with the domestic law applicable to a ccTLD manager, and there
> are several "except as otherwise provided...by law" references, which
> means US law, but there is no reference to "international law" or
> treaties.

Huh.  Wish I could remember who said this yesterday.  I'd like to get
clarification on the point, need a lawyer who can do international law 101
for inadequately caffeinated dummies, copying Froomkin:

What precisely is ICANN's status under international law?  Irrespective of
what's stated in its bylaws, presumably it has some obligations under
international private law with respect to contracts etc. What about
international public law as instanciated in ICT-related treaties under,
inter alia, ITU/WTO/WIPO/COE, or the international bill of human rights
for that matter?  Could the USG as signatory to these at least nominally
be obliged to act to bring ICANN into compliance with, say, a ruling of
the WTO's dispute settlement system, a petition filed with the European
Court of Human Rights, etc?  This language went into our statement with
not much discussion and I'll bet I'm not the only person here who's not
entirely clear how these things work in relation to an org with ICANN's
particular legal/tax status.

> The difference in perspective here is "accountability to whom?" ICANN
> is already completely accountable to one government and the addition of
> more governments per se does not get me excited, it just means

It does however get them excited, and in many cases they are not alone.
Some actually do have constituents who don't like the SQ and wish for
their governments to promote change---we shouldn't assume it's just a
self-entailed bureaucratic interest at work here.  Things that seem
acceptable to globe trotting, tech enabled folks from Northern countries
with dense systems of private sector and CS organization and interest
representation can look different to people from places where conditions
are different.  Anyway, I just wish we could have said something
interesting on the issue being pushed by developing countries, feel like
just saying we don't support a new intergovernmental arrangement full stop
sort of ducks the question, particularly since WGIG models 1, 3, and 4 all
envision varying degrees of multistakeholder participation, as does the
Brazilian.

> It is not too relevant to this argument to say that some international
> public policies are ones you don't agree with.  If you get undefined,
> unrestricted "oversight" you are also going to get decisions you don't
> agree with. Indeed, you are much more likely to get arbitrary and
> unlimited interventions.

Disagree with the first, agree with the second.  To me the
constitutional/institutional form of governmental organization seems less
important than the mandate and scope of authority.  If the latter were
narrowly bounded and not subject to expansion, how much would it would it
matter whether you have a GAC within ICANN, which basically most
governments North and South dislike, or an intergovernmental body, or a
multistakeholder body in which governments have authority in the last
instance over public policy, which is basically the EU's Model 3? The
comparative costs and benefits merit consideration that neither we nor
they have given.

Best,

Bill




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