[governance] "oversight"

[Riaz K Tayob]

parminder

in summary:

legitimation of imperialism (ability to give law) and "othering"

amazing how simplistic analysis can be, countries can be 
anti-imperialist abroad while being tyrannical abroad...

i guess that citizens united case should give pause to faith in american 
political benevolence... but perhaps not!

riaz

On 2012/06/07 07:41 AM, parminder wrote:
>
>
> On Monday 04 June 2012 10:21 PM, Milton L Mueller wrote:
>>
>>
>> */[Milton L Mueller] Well, yes. You slap everyone in the face with a 
>> call to arms that implies we are all idiots, I reply in kind. Now 
>> that we’ve got each other’s attention, maybe we can have a rational 
>> dialogue. /*
>>
>
> A very weak excuse, Milton, but I'll pass it, as long as we are, 
> hopefully, on the rational dialogue path.
>>
>> *//*
>>
>> *//*
>>
>> Your submission says, there should be a US led international 
>> agreement on ICANN status and role. I dont understand by what does 
>> 'US led' mean. Pl explain.
>>
>> *//*
>>
>> */[Milton L Mueller] OK. US now controls the root and ICANN via the 
>> IANA contract. If we are to move beyond that, the US has to take the 
>> initiative; i.e., the US has to say, “we are willing and ready to 
>> consider a new model.” Remember, those were comments in a U.S. 
>> proceeding, urging the US to take that leadership. /*
>>
>
> I have no problem with your statement as comments in a US proceeding, 
> and thus at that i time I did not critique it. But now, in response to 
> my email, you indicated the same documents and its recs as the 
> possible way to go in the 'international' (or transnational) 
> discussion that we started to have on this list, and thus the nature 
> of my responses to it. Now, if US led just means, US needs to agree 
> 'we are ready to consider a new model' , yes, that is obvious. 
> Although, it is important to note that civil society starts proposing 
> models and build moral and political pressure much before governments 
> show their readiness to act, and I can quote innumerable instances of 
> this..... We dont wait to first see the clear expression of readiness 
> before we make our concrete proposals and build moral/ political 
> pressure. Also, I was wondering if what you call as a US led 
> international agreement will be the kind of political fiction like 
> AoC, where US signs something with a private party and tries to sell 
> it as an international thing, or it will be the real thing, as real 
> agreements between affected parties are, with international legal 
> basis and force. With your above clarification, I now think it is the 
> latter kind that you mean, but you may clarify.
>
>> *//*
>>
>> *//*
>>
>> I can only understand international agreements under international 
>> systems, like the UN.
>>
>> *//*
>>
>> */[Milton L Mueller] And, even on this list, we can see how poorly it 
>> works when the UN or a UN agency like the ITU tries to take the 
>> initiative. It becomes a “takeover” proposal and it plays into the 
>> hands of US-based nationalists. And it seems surprisingly easy to get 
>> many others to jump on that bandwagon – see, e.g., Avri’s recent 
>> comments on the ITU. Ergo, “US-led” is required. /*
>>
>
> OK, now I think you dont have in your mind what I would see as 'real' 
> international agreements . What exactly is it that you are suggesting. 
> Pl be clear. What exactly is the US-led thing you propose. As to how 
> UN thing does or does not work, you present a very one sided picture. 
> The world in general is not so anti UN as a very limited view of a 
> narrow set of very vocal  players in the IG space may suggest. I can 
> show you many campaigns from across the world,  very popular and well 
> supported ones, that keep calling for a greater UN role in areas like 
> trade, climate change, IP, health, human rights etc.
>
>> *//*
>>
>> *//*
>>
>> I see 'oversight' as largely meaning  as backing and ensuring 
>> adherence to the relevant legal framework (arrived through the 
>> international treaty spoken of above) and maintaining accountability.  I
>>
>> *//*
>>
>> */[Milton L Mueller] I think Bill Drake answered this claim very 
>> effectively. That is not what “oversight” means in historical context 
>> or to most of the people using it. To most govts, oversight means 
>> imposing or injecting their “public policy” concerns onto Internet 
>> governance institutions, collectively or individually. So we are back 
>> to the “public policy” problem. /*
>>
>
> I still think WGIG saw oversight, in itself, in a relatively narrow 
> manner, even if connected to broader global pubic policy (GPP) issues. 
> We also know that US gov/ US media uses the term oversight in its 
> narrow meaning. Now, we cant keep on insisting that this term has to 
> be accepted to mean as some the actors we may not agree with take it 
> to mean. These are only /some/ actors.... As for 'injecting public 
> policy concerns onto IG institutions', you do agree later in your 
> email that 'FoE and anti-trust' are public policy concerns and they, 
> you insist, /must/ be injected onto IG institutions. Milton, the 
> paradox is clear. I agree with you that the processes and procedures 
> of developing public policy and means of, to use your words, injecting 
> them onto IG institutions, cannot be ad hoc, and should be very very 
> clear, process and relevant law bound. However, you cant really be 
> serious in proposing that what you see as public policy is good and 
> anything else  is bad. In essence, this is what you are saying . Lets 
> be rational :).
>
>> *//*
>>
>> *//*
>>
>> */Now we all know, or should know, that most govts still believe they 
>> should be setting public policy for the internet./*
>>
>
> Huh. So you think that governments shouldn't be setting public policy 
> for the Internet! In that case, I must alert and warn you that there 
> is someone masquerading as you, Milton Mueller, very active in the 
> civil society advisory committee of OECD's CCICP which is one body 
> most active in enabling some, most powerful, governments in 'setting 
> public policy for the Internet'. You must intervene immediately and 
> stop him. and the concerned governments, from doing this most 
> diabolical work.
>
>> */(It’s in the Tunis Agenda) From years of experience, including 
>> especially form watching the GAC and an IGF workshop on that topic, I 
>> have come to understand what it means./*
>>
>
> Milton, we are slipping here into straight-forward 
> anti-governmentalism, as anti-democraticism. With years of experience 
> with the Indian government (and I am sure yours would be same for the 
> UG gov) I have come to understand the pettinesses of politicians, 
> their proclivity to corruption etc etc..... however neither have I 
> stopped engaging, very actively, with the Indian democratic governance 
> system, nor have I the least doubt that if I were to be a part of the 
> writing a new Indian constitution, it would in many/most of its 
> essential features would be similar to what it is today.
>
>> */It means, “we want to alter any ICANN decision to go along with 
>> whatever concerns we as national governments have, whatever political 
>> winds are blowing us at the moment and whatever lobbyist made the 
>> greatest impression on us.” It does NOT mean “ensuring adherence to a 
>> fixed legal framework.” Ensuring adherence to a legal framework is 
>> more like what courts do, not the politicians and ministers/govt 
>> bureaucrats who would staff an “oversight agency.” /*
>>
>
> Courts do it on the basis of laws made by politicians/ ministers/ gov 
> bureaucrats. As I have been discussing, it is possible to make a CIR 
> oversight body with the sole role of ensuring adherence to a legal 
> framework, and not allowing it to make ad hoc interferences at all. An 
> institutional design that can ensure this objective is possible and 
> lets work towards it with faith in global democracy and global 
> institutions.
>
>> *//*
>>
>> *//*
>>
>> In any case, in your 2009 proposal you seem to be quite confused 
>> between your hatred of 'public policy' from above and at the same 
>> time putting in clear terms that ICANN should be subject to FoE 
>> regulation, anti-trust law etc (through the international agreement). 
>> This is subjecting ICANN to top down public policy, isnt it.
>>
>> *//*
>>
>> */[Milton L Mueller] Yes and no. Yes, I agree that codifying FoE and 
>> antitrust is in effect a policy. No, because the “policy” embedded in 
>> FoE and antitrust rules is stable, well-defined and fixed, not 
>> subjected to new formulation and change based on passing political 
>> vicissitudes./*
>>
>
> There are many other policy objectives that have long term stable 
> political consensus around then in modern political thought and 
> practice. You just have a narrow ideological position here, which I 
> cant share. But lets at least agree that it is just one ideological 
> position, and your above propositions do not stem from any neutral 
> rational logic.
>
>> */In other words, we don’t want a committee of governments that 
>> reviews every ICANN decision and says “how does this conform to or 
>> contribute to my current policy objectives?” Instead, we want a 
>> dispute-driven (i.e., bottom up), court-like review process that 
>> says, “someone has claimed that this particular action of ICANN 
>> violates freedom of expression rights. Is this claim correct or not?”/*
>>
>
> Yes, but again, here is the Milton's version of appropriate public 
> policy, and not such that is derived by a due, to the extent possible, 
> democratic process..... However, As oft stated now, I do agree that 
> the oversight body should have such a narrow 'legality and policy 
> adherence assessing' role as you put it.
>
>> *//*
>>
>> *//*
>>
>> */And if you want to ask me why I believe it is legitimate to codify 
>> FoE and antitrust as the relevant policies, it is because I believe 
>> those are the correct policies – ones that will keep the internet and 
>> the people who use it thriving./*
>>
>
> I understand that you believe these to be the 'only' relevant 
> policies. But arent you a bit of bulldozing things here. I believe 
> that some other policies are as basic - as, for instance, enshrined in 
> many UN human rights instruments. So you think those are not relevant 
> and correct policies for the Internet? Just to breach your narrow, 
> arbitrary, construction, well, let me just name one - privacy......
>
>> */I imagine it would be hard to get Putin or the Iranian government 
>> to agree on those, which is why I am _not_ in principle committed to 
>> a pure intergovernmental process./*
>>
>
> Do you know with what dread the rest of the world reads the 
> pronouncement of US's tea party notables.... this is one reason that I 
> cant be persuaded by your entreaties that we all just submit to the US 
> law. It is easy to denounce a system by pointing to the views of what 
> may look like its worst actors, it can be done for any system. You 
> know very well that one Russia and one Iran cannot make UN policy, can 
> they?? Therefore your above line of 'reasoning' doesnt hold. Do you 
> think the non US world is readier to be subject to a US led process 
> then you are for a pure intergov UN process. Note however, that my and 
> many other proposals on the table on oversight and broader GPP are 
> rather multistakeholder. And I said that we must discuss actual 
> elements of any MS proposals - for instance, do you see, say, a 
> Microsoft rep play the same role as the Brazilain gov rep, for all 
> kind of policy and oversight matters?
>
>> */I think the more-liberal Internet can and should create its own 
>> institutional framework and bypass the repressive and authoritarian 
>> regimes if and when it can./*
>>
>
> And, by the same token, also bypass the unilateral regime of the US 
> with one of the the world's worst record of not playing along with 
> global rules and standard, and with a rabid IP stance and global 
> design that, if implemented, would distort the global economic 
> structure forever. Why does these points miss your censure, and  you 
> not see the need for bypassing this particular regime, which the rest 
> of the world finds so oppressive.
>
>> *//*
>>
>> *//*
>>
>> Then you seek " an appropriate body of national law under which ICANN 
>> should operate", whereby you mean an body of US law. No we cant agree 
>> here US law is made and can be changed by US legislature, and that 
>> doesnt work for the rest of the world. The appropriate body has to be 
>> of international law.
>>
>> *//*
>>
>> */[Milton L Mueller] it would be fine for me, /*
>>
>
> lets build on this agreement......
>
>> */I used to believe the same thing, but then people who understand 
>> how international law really works convinced me that it doesn’t 
>> really afford individuals much protection. /*
>>
>
> US law affords even much less protection to me, even if I were to 
> disregard my principled opposition to its global application.
>
>> */Show me some cases, e.g., where the international legal system 
>> really upheld an individual’s free expression rights in a timely and 
>> effective manner and I might change my views. /*
>>
>
> We see international legal system increasingly in operation even in 
> criminal matter, like war crimes (a different matter that US doesnt 
> accept this legal system). Traditionally, UN has mostly given policy 
> frameworks that have informed national legal systems, and I know many 
> instances, for instance in case of human right, women's rights, that 
> these UN policy frameworks have had very far reaching impacts. I 
> havent studied legal systems that would have had to provide direct and 
> immediate redress - in matters like marine routes and the involved 
> international jurisdiction, global trade disputes, IP disputes etc.... 
> but I understand that they do work. In case of the Internet, the 
> pressing global nature of the problems is a new thing, and as far as 
> we are satisfied with policy development frameworks, implementation 
> vis a vis to redress etc is an issue of contextual institutional 
> design, and that is why, in the present case, we should discuss how 
> the international CIR oversight body be consituted etc.
>
>> *//*
>>
>>
>> You correspondingly want any non US person or entity to use 
>> California law to seek redress, if required, from ICANN. Again doesnt 
>> work for me.
>>
>> */[Milton L Mueller] only with respect to membership and certain 
>> procedural rights. I agree that this aspect of the proposal is 
>> flawed. There could be better proposals, but I haven’t seen one. /*
>>
>
> No, it is not only in these matters that you mention that your 
> proposed system is flawed. It is undemocratic, subject to US policy 
> and law making processes, in which I have less faith than you perhaps 
> have in UN processes. Milton, I know you have a strong native 
> political instinct and strong political views. Answer this honestly ' 
> if you were not a US citizen, would you have accepted this 
> arrangement'. I am sure you would not have. So, pl be rational here :).
>>
>> *//*
>>
>>
>> I must mention that it is strange that you, and the US, would want 
>> people and other entities of the rest of the world to resort to US 
>> national law to seek remedies vis a vis management of a global 
>> resource at a time when US is going around promoting FTAs that seek 
>> to subvert relevant domestic laws of the countries that it does FTA 
>> with in favour of international arbitration.  Why being so stingy 
>> about sticking to national law and redress systems in this case. Why 
>> cant we have an international redress system.
>>
>> *//*
>>
>> */[Milton L Mueller] If you are talking about ICANN, I think most of 
>> the redress would be internal to ICANN’s processes, and thus would be 
>> fully international./*
>>
>
> What policy/ legal basis is this redress based on. I remember a NCUC 
> statement that ICANN should never take a political/ policy view of 
> things, and limited by its mandate, only take technical/ financial 
> view. Do I remember wrong. So, on what basis would the redress be 
> provided if it involves a policy/ legal issue, even if FoE and 
> anti-trust based.
>
>> */E.g., the policy making bodies are governed by ICANN bylaws; the 
>> Independent Review Process was an arbitration that was not conducted 
>> under California Corp. law but under ICANN’s own defined procedures. 
>> I am just talking about falling back to Cal. law for some basic forms 
>> of accountability regarding procedure and membership. /*
>>
>
> We keep coming back to the same point. US law is not acceptable. 
> Milton, you reject UN systems because you suspect that a few 
> authoritarian states will make the wrong kind of policies. You want us 
> to remain assured that US gov will never make wrong kind of policies. 
> Do you think this works for us, non US citizens. You seem to favour 
> the US system because of your preference for long term stable policy/ 
> legal systems. However, if we were to approach it rationally, I think 
> the US policy/ law making system is much more volatile that UN based 
> one. Dont you think so. With the kind of laws that we have seen 
> recently passed in the US, or on being on the brink of being passed, 
> do you think it gives the world confidence in the US policy/ legal 
> system. On the other hand, so laborious and consensus oriented are UN 
> processes, with US and its allies having such a position of enviable 
> strength in them ( a fact we seem to very easily ignored) that nothing 
> other than such policy positions that have long term relatively stable 
> political consensus in modern, but evolving, political though and 
> practice, can get past these processes.
>
>
>> *//*
>>
>> *//*
>>
>> */The FTA argument is a red herring, has nothing to do with me or my 
>> position or what we are talking about here. /*
>>
>
> No, it isnt. The international arbitration processes that are being 
> insisted upon in FTAs provide an example of increasing use  of 
> international redress mechanisms, an issue you again raised above. It 
> is a different matter that I do not agree with the business-directed 
> processes that actually get employed in case of FTAs. No reason 
> however we cant have public interest oreinted interntional redress 
> processes based on sound international law.
>
> parminder
>
>> *//*
>>
>> *//*
>>
>> */Your turn./*
>>
>
>
>
>> *//*
>>
>>
>>
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