[governance] Burr & Cade: proposal for introducingmulti-lateral oversight of the root

Tue Aug 1 07:06:26 EDT 2006

Dear all,

Wolfgang is right : the challenge we all are confronted with is to invent a
new type of multi-stakeholder structure (whatever that is) that can be
established directly at the international level and is not a traditional
intergovernmental organization.

As far as I know, there is no possibility today to create entities directly
at the international level, apart from intergovernmental organizations (and
this requires very complex and lengthy negotiations and treaties) : you
cannot create for instance a global company or a global NGO right away, able
to operate (and be recognized) in all countries on the basis of their
website.

ICANN was incorporated as a US non-profit corporation for many reasons. But
one of them is that there was no way to do anything else directly at the
international level. The World Wide Web Consortium had chosen a different
approach and was never formally incorporated : it instead relies upon simple
Host agreements with institutions such as MIT, Keio University and
(initially) INRIA. For those who do not know the story, this lack of formal
incorporation prevented them to be accredited to the WSIS process.

When thinking about the future of ICANN - and other multi-stakeholder
mechanisms -, this question of new type(s) of international structure(s) -
and its (their) internal governance charter(s) - is the core nut that we are
all afraid to crack.

The "seat agreement" notion that Wolfgang is talking about is a key issue :
the Internet is a global network; its governance structure can and should
only be global. As the traditional mechanism of a pure intergovernmental
organization is obviously not appropriate, what status could be created
so for a new type of international, multi-stakeholder structure ? And what
law would apply, irrespective of the place its "offices" are located in ?

Bertrand

On 7/27/06, Wolfgang Kleinwächter <
wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>
> Parminder:
>
>
> A self declaration of adherence is not enough. ICANN is incorporated under
> US law and that law alone is enforceable on it. ICANN is not incorporated
> under international law. And international law doesn't apply except by a US
> executive or judicial interpretation of it, that too in all cases
> subordinate to the US law.
>
>
>
> Wolfgang:
>
>
>
> One of the option would be to have something like a "seat agreement" like
> the UN has in NYC. This is one option, but normally not the practice for
> non-govenrmental or private organisaitons but only for intergovernmental
> organisaiton operating under the Vienna Convention (which guarantees also
> diplomatic status to its employees). If you would prefer such a solution,
> you have to change ICANN into an intergovernmentl body. I would prefer to
> "invent" something which creates new procedures and practices, based on
> (good and bad) existing experiences from the 20st century diplomacy.
>
> ________________________________________________
>
> Parminder Jeet Singh
>
> IT for Change, Bangalore
>
> Bridging Development Realities and Technological Possibilities
>
> 91-80-26654134
>
> www.ITforChange.net
>
>
>
> > -----Original Message-----
>
> > From: Wolfgang Kleinwächter [mailto:
> wolfgang.kleinwaechter at medienkomm.uni-
>
> > halle.de]
>
> > Sent: Wednesday, July 26, 2006 4:42 PM
>
> > To: governance at lists.cpsr.org; Parminder; governance at lists.cpsr.org;
>
> > Milton Mueller; apeake at gmail.com
>
> > Subject: AW: [governance] Burr & Cade: proposal for introducingmulti-
>
> > lateral oversight of the root
>
> >
>
> > Dear list,
>
> >
>
> > a lot of this debate is hot air. The concept of ICANN was never to be
>
> > above or outside international (governmental)  law. Magaziner made this
>
> > clear after the EU asked some sharp questions in March 1998. This is
>
> > reflected in Article 4 of the "Articles of Incorporation", still the
> main
>
> > legal basis for ICANN (can not be changed like bylaws) which reads as
>
> > follows:
>
> >
>
> > "Article 4: The Corporation shall operate for the benefit of the
> Internet
>
> > community as a whole, carrying out its activities in conformity with
>
> > relevant principles of international law and applicable international
>
> > conventions and local law and, to the extent appropriate and consistent
>
> > with these Articles and its Bylaws, through open and transparent
> processes
>
> > that enable competition and open entry in Internet-related markets. To
>
> > this effect, the Corporation shall cooperate as appropriate with
> relevant
>
> > international organizations."
>
> >
>
> > There is space for interpretation
>
> > * what the "relevant principles of internationa law" means (obviously
> jus
>
> > cogens, including sovereign equality),
>
> > *  what "applicable internaitonal conventions" are (cybercrime
> convention,
>
> > ITU regulation, WIPO treaties, GATS, TRIPS, UNESCO Convention on
> Cultural
>
> > Diversity?) and
>
> > * what relevant internaitonal organisaitons are (IETF, RIR, CENTR, ITU,
>
> > UNESCO, UN. OECD?)
>
> >
>
> > But regardless of all interpretations, ICANN was never "putside"
>
> > inernational law and althougn governments got nothign more than an
>
> > "avisory role", ICANN was and is legally obliged to carry out its
>
> > activities in conformity with the law (and this includes also the "local
>
> > l,aw", that is "national jurisdictions" a formula which gave DENIC and
>
> > other a lot of power in their struggle to avoid a top down PDP for
> ccTLDs
>
> > and should be also more used in the WHOIS debate).
>
> >
>
> > With principle 2 (2005) the US Govenrment recognized de facto the
>
> > sovereignty of governments over the national domain name space which is
>
> > reflected in.Para 63 of the Tunis Agenda and reads as follows:
> "Countries
>
> > should not be involved in decisions regarding another country´s ccTLD.
>
> > Their legitimate interests, as expressed and defined by each country in
>
> > diverse ways, regarding decisions affecting their ccTLDs need to be
>
> > respected, upheld and addressed via a flexible and improved framework
> and
>
> > mechanisms".
>
> >
>
> > This is clear language, supported and accepted by the US govenrment. The
>
> > eIANA project by NASK translates this words partly into action. It can
> be
>
> > speculated whether this was the price the USG paid to China to remove
>
> > Bejings opposition against the  ICANN controlled DNS, but as I said,
> this
>
> > is speculation. If you check recent polica decisions in China, also with
>
> > regad to iDNS, than you will recognoze that the agenda has been chnged.
> We
>
> > do nt have 1998 anymore.
>
> >
>
> > However, as long as I can remember, no case is known where a ccTLD
> became
>
> > the subject of a (dirty) political game (even the .ly or .iq or .af
> cases
>
> > had no political but commercial or procedural backgrounds).
>
> >
>
> > Insofar Becky Burrs proposal should be seen as more general idea to find
> a
>
> > way to satisfy the wish of governments to play a role (elsewhere in the
>
> > sky or, as the EU have proposed on an undefined "level of principle"). I
>
> > made a similar proposal already during the UNICTTF Internet Governance
>
> > meeting in New York in March 2004, proposing something like an "Internet
>
> > Convention" for the establishment of an "Internet Security Council",
> only
>
> > for cases where the "security and stability of the Internet" is affected
>
> > (with 15 member states). In my proposal I said that such a committee
>
> > should work only as an adhoc Sub-Committee of the  GAC, should have no
>
> > authorization function but should be activated only in cases where "the
>
> > security and stability of the Internet" is affected. For such a
> procedure
>
> > there would have been a need to define clear criteria to find out
> whether
>
> > a case is indeed a case threatening the stbaility and security of the
>
> > Internet. The criteria would be the result of a multistakeholder
>
> > negotations process. You would need an additonal committee, which would
>
> > check applications of governments to start the procedure in ther adHoc
>
> > Committee.With other words you would intriduce a "procedural buffer" to
>
> > reduce misuse or capture of the governmental procedure.
>
> >
>
> > To have such an intergovernmental adHoc Internet Security Council  under
>
> > the GAC would have been included the need to settle the Taiwan question
> in
>
> > GAC to enable China to join. The reaction to my rather detailed proposal
>
> > (quated also in the Washington Internet Daily) was rather mixed and I
> got
>
> > applause also from suspicious corners. During WGIG we discussed this
> again
>
> > and again. No consensus. Some WGIG members, including me, opted at the
> end
>
> > for a "status quo minus", that is that USG should terminate its
> historical
>
> > grown role and should trust the global Internet Community and ICANN (and
>
> > not become replace by an "internationalzed oversight mechanism) under
> the
>
> > condition that ICANN is embedded into a system of accountability, checks
>
> > and balances and that government have "on the level of principle
> elsewhere
>
> > in the sky" a more general role which they have already now according to
>
> > the rights under the Charter of the United Nations. .
>
> >
>
> > How such an approach could be translated into working mechanisms is the
>
> > one million dollar question. Para 63 (WSIS II) calls for "a flexible and
>
> > improved framework and mechanisms". One interpretation is that
> "improved"
>
> > implies that no new body is needed but you have to develop further
>
> > existing mechanisms. This is the same what Kofi Annan called for in New
>
> > York in March 2004, when he called for "political innovations".
>
> >
>
> > ICANN 1.0 was a "political innovation" but went too far by excluding
>
> > governments from decision making and giving nine voting board seats to
>
> > individual Internet users. After September 11, 2001 (and the crash of
> the
>
> > .com hype)  Stuart Lynn wanted to change this but the result was nothing
>
> > more than a "de facto veto right" of the GAC and the exlcusion of At
> Large
>
> > from the decision making process. ALAC got a voice, no vote. No
> government
>
> > opposed the reduction of At Large. Later in the WSIS context, Paul
> Twomey
>
> > re-discovered the role of the users" as a shield against governmental
>
> > efforts to push ICANN away. Sith the Tunis summit ICANN got what it
>
> > wanted: Its inernational recognition as a multistakeholder organisation
>
> > but with the burden to finish its hom,ework and to move foreward in an
>
> > undifend process of "enhanced cooperation".  And this is what is now
>
> > happening. Moving forward into unknow territory.
>
> >
>
> > My understanding of the recent establishment of the joint GAC-Board
>
> > working group is that the key players realize and understand what to do
>
> > but have not yet a clue how to formalize this in a way which would avoid
>
> > going back to the traditional international law making on the one hand
> but
>
> > respecting also de jure the sovereignty of nations on the other hand by
>
> > having a mechanism in place for govenrmental actions if issues appear
>
> > which go beyond the DNS and Root Server management and affect "world
>
> > peace".
>
> >
>
> > Sofar I am still in favour of an enhanced joint cooperative mechanism
>
> > between GAC and the Board. My innovation would be to include the ALAC
> (as
>
> > the other non-technical advisory board with no voting powers in the
> Board)
>
> > in such a group. This would create a new triangular "Internet Security
>
> > body" where you could give "veto rights" to a stakeholder group (and not
>
> > to single UN member states). But I am afaid that this will take more
> time
>
> > than one hearing at Capitol Hill and another Forum close the the
>
> > Acropolis.
>
> >
>
> > Best wishes
>
> >
>
> > wolfgang
>
> >
>
> > Yuthe conclusion w
>
> >
>
> > to this proposal - this was before WGIG - n  with
>
> >
>
> > ________________________________
>
> >
>
> > Von: Parminder [mailto:parminder at itforchange.net]
>
> > Gesendet: Mi 26.07.2006 12:01
>
> > An: governance at lists.cpsr.org; 'Milton Mueller'; apeake at gmail.com
>
> > Betreff: RE: [governance] Burr & Cade: proposal for introducingmulti-
>
> > lateral oversight of the root
>
> >
>
> >
>
> >
>
> > Milton wrote:
>
> >
>
> > > Another problem with this debate I have noticed is a confusion between
>
> > two
>
> >
>
> > > distinct things:
>
> >
>
> > >
>
> >
>
> > > 1. The importance of Internet policies and the need, or even the
>
> >
>
> > > inevitability, of governments playing a role in how those policies are
>
> >
>
> > > rules are made.
>
> >
>
> > >
>
> >
>
> > > 2. Control over modifications of the Root Zone File (RZF).
>
> >
>
> >
>
> >
>
> > > Let's create a sharp distinction between the two.
>
> >
>
> >
>
> >
>
> > On the contrary, my opinion is that the sharp connection between the two
>
> > is obvious.
>
> >
>
> >
>
> >
>
> > For example, is it at all difficult to see why US refuses to relinquish
>
> > control over RZF? And this even at the risk of courting considerable
>
> > international ill-will for sticking to a very illogical and untenable
>
> > stand of unilateralism. Is it only because US is concerned about
> technical
>
> > stability and security of the Internet, and others may not be? Others
> are
>
> > equally concerned, and there cannot be any real difference of opinion on
>
> > this issue. It is so obvious that if the issue was only technical it
> wont
>
> > be difficult to reach an arrangement for supervisor of RTZ under a team
> of
>
> > international experts or some other expertise based
> arrangement.  Everyone
>
> > knows that behind the control of RTZ is hidden the issue of wider
>
> > political control over the Internet. And RTZ control is one way to
>
> > exercise such political control over Internet. US government has other
>
> > controls as well through its legal relationship with some IG related
>
> > bodies.
>
> >
>
> >
>
> >
>
> > >Since ICANN is a global organization and needs to be
>
> >
>
> > > accountable, governments can and should establish global rules that
> help
>
> >
>
> > > to make it accountable. For example, if ICANN or its successor abuses
>
> > its
>
> >
>
> > > authority, breaks its own rules, cheats, steals, etc. it needs to be
>
> >
>
> > > accountable. Governments need to work out how to apply competition
>
> > policy
>
> >
>
> > > and law, and trade rules to ICANN. That's all legitimate government
>
> >
>
> > > business.
>
> >
>
> >
>
> >
>
> >
>
> >
>
> > I have heard a lot about how ICANN should be obligated to observe
>
> > international law, should stick to all new and old international
> treaties
>
> > etc, but not much on how this can be ensured. Shall it be left to
> ICANN's
>
> > interpretation and its goodwill? Or to US government which has all kinds
>
> > of control over ICANN? Every higher political power exercises its
>
> > political authority through reserving some powers of last resort. (ICANN
>
> > being incorporated under US law makes its subject to so many of these
>
> > powers of US gov which can kick in during an emergency - emergency for
> the
>
> > US - that this fact itself is scary for non US citizens). It is more
>
> > important to have these powers in reserve, than use them often. Control
>
> > over RTZ is seen as one of such powers that enable exercise of political
>
> > authority. Whoever has legitimate political power over public policy
>
> > issues related to Internet can only enforce it by having some powers of
>
> > last resort over the actual running of the infrastructure. This much is
>
> > obvious, even if we may still debate which body or arrangement should
>
> > exercise political oversight over Internet.
>
> >
>
> >
>
> >
>
> >
>
> >
>
> >  >Governments can have 1
>
> >
>
> > > without 2.
>
> >
>
> >
>
> >
>
> > Maybe they can. I do not insist that formal process of authentication of
>
> > RTZ modification is the only 'control lever' available for enforcing
>
> > political oversight. There can be others, but this lever is being used
> at
>
> > present by US, and others see it as one of the main levers as well. One
> or
>
> > the other such lever will be needed for 'enforcing' political oversight.
>
> > So if one agrees with the need for political oversight, then one may
> have
>
> > to see RTZ control as a connected issue.
>
> >
>
> >
>
> >
>
> > Parminder
>
> >
>
> >
>
> >
>
> > ________________________________________________
>
> >
>
> > Parminder Jeet Singh
>
> >
>
> > IT for Change, Bangalore
>
> >
>
> > Bridging Development Realities and Technological Possibilities
>
> >
>
> > 91-80-26654134
>
> >
>
> > www.ITforChange.net
>
> >
>
> >
>
> >
>
> > > -----Original Message-----
>
> >
>
> > > From: Milton Mueller [mailto:Mueller at syr.edu]
>
> >
>
> > > Sent: Monday, July 24, 2006 8:59 PM
>
> >
>
> > > To: apeake at gmail.com; Governance
>
> >
>
> > > Subject: Re: [governance] Burr & Cade: proposal for introducingmulti-
>
> >
>
> > > lateral oversight of the root
>
> >
>
> > >
>
> >
>
> > > >>> apeake at gmail.com 7/20/2006 10:12 AM >>>
>
> >
>
> > > >Thanks to Brenden Kuerbis and IGP for pointing to an interesting
>
> >
>
> > > >proposal from Becky Burr and Marilyn Cade on oversight of the root
>
> >
>
> > >
>
> >
>
> > > A bit behind the traffic here, but please note that the proposal is
>
> >
>
> > > Burr's.
>
> >
>
> > > Marilyn Cade has simply endorsed it.
>
> >
>
> > >
>
> >
>
> > > Another problem with this debate I have noticed is a confusion between
>
> > two
>
> >
>
> > > distinct things:
>
> >
>
> > >
>
> >
>
> > > 1. The importance of Internet policies and the need, or even the
>
> >
>
> > > inevitability, of governments playing a role in how those policies are
>
> >
>
> > > rules are made.
>
> >
>
> > >
>
> >
>
> > > 2. Control over modifications of the Root Zone File (RZF).
>
> >
>
> > >
>
> >
>
> > > Let's create a sharp distinction between the two. Governments can have
> 1
>
> >
>
> > > without 2. Since ICANN is a global organization and needs to be
>
> >
>
> > > accountable, governments can and should establish global rules that
> help
>
> >
>
> > > to make it accountable. For example, if ICANN or its successor abuses
>
> > its
>
> >
>
> > > authority, breaks its own rules, cheats, steals, etc. it needs to be
>
> >
>
> > > accountable. Governments need to work out how to apply competition
>
> > policy
>
> >
>
> > > and law, and trade rules to ICANN. That's all legitimate government
>
> >
>
> > > business.
>
> >
>
> > >
>
> >
>
> > > But that does not mean that governments need to have or should have
> some
>
> >
>
> > > kind of veto power over modifications of the root zone file. It seems
> to
>
> >
>
> > > me that giving governments*any one or any collection of them*some kind
>
> > of
>
> >
>
> > > final veto power over the RZF is just asking for trouble. The Burr
>
> >
>
> > > proposal tries to deal with this by saying that governments can
>
> > intervene
>
> >
>
> > > only to protect technical stability and security. But this is like
>
> > telling
>
> >
>
> > > a fox he can only eat one of the chickens he is guarding when the
>
> >
>
> > > stability and security of the farm is threatened. The fox will always
>
> > want
>
> >
>
> > > to eat the chickens, and will use any excuse he can to define
> something
>
> > as
>
> >
>
> > > a threat to the farm's stability and security.
>
> >
>
> > >
>
> >
>
> > > Governments and their representatives are not likely to have any clue
> as
>
> >
>
> > > to what RZF changes affect the technical security and stability of the
>
> >
>
> > > Internet. But they will know how their political interests are
> affected.
>
> >
>
> > > They will want to control or affect the RZF for political reasons, not
>
> >
>
> > > technical ones.
>
> >
>
> > >
>
> >
>
> > >
>
> >
>
> > >
>
> >
>
> > > ____________________________________________________________
>
> >
>
> > > You received this message as a subscriber on the list:
>
> >
>
> > >      governance at lists.cpsr.org
>
> >
>
> > > To be removed from the list, send any message to:
>
> >
>
> > >      governance-unsubscribe at lists.cpsr.org
>
> >
>
> > >
>
> >
>
> > > For all list information and functions, see:
>
> >
>
> > >      http://lists.cpsr.org/lists/info/governance
>
> >
>
> > ____________________________________________________________
>
> > You received this message as a subscriber on the list:
>
> >      governance at lists.cpsr.org
>
> > To be removed from the list, send any message to:
>
> >      governance-unsubscribe at lists.cpsr.org
>
> >
>
> > For all list information and functions, see:
>
> >      http://lists.cpsr.org/lists/info/governance
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
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> To be removed from the list, send any message to:
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>
> For all list information and functions, see:
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