AW: [governance] Burr & Cade: proposal for introducingmulti-lateral oversight of the root
Wolfgang Kleinwächter
wolfgang.kleinwaechter at medienkomm.uni-halle.de
Wed Jul 26 07:12:02 EDT 2006
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.
>
>
>
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