[governance] "Oversight"

[parminder]

On Saturday 16 June 2012 12:12 AM, Milton L Mueller wrote:
>
> I really dont find any real difference between what I said you say, 
> and what you claim you say. Ok, lets say, you think US law is the best 
> form of political oversight, given the present circumstances.
>
> */ /*
>
> */[Milton L Mueller] Ah, now I see why what I am saying drives you 
> crazy. /*
>
> *//*
>
> */ /*
>
> */You are confusing two fundamentally different things: "political 
> oversight" and the law ICANN is incorporated under./*
>

The law under which ICANN is incorporated can determine and limit what 
ICANN can do or not do.  BTW, if it indeed does not so  determine, and I 
have asked this question a thousand times, why then not let ICANN be 
incorporated under international law. Why do all the arguments change 
when we transit from US law to international law.

And if you want to know of a practical instance; I was reading about the 
ICANN's decision last year to do away with registry-registrar cross 
ownership restriction (BTW a most retrogressive decision!), and I found 
frequent mentions of things like ' as we discussed with competition 
authorities'. First of all I would like to know from the people more 
closely involved, which competition authorities did ICANN talk to. I 
take it to be US government's because I know of no international level 
competition authority.  Apparently, the inputs from US's competition 
authorities helped ICANN take this most retrograde decision. I think 
that competition authorities of many other countries - perhaps even of 
India- would not have advised in favour of such a bad decision, which as 
I would separately discuss, would now lead to privatisation of important 
bits digital lingua and work against competitive practices in the domain 
name industry.

However, though the above shows how US laws and their application may 
indeed not be the best for ICANN, I simply refuse to get into this 
argument, whether British law (cant but be reminded of the colonial 
period) or US's or Japan's is better in some way than my own country's 
law or the international law. I simply refuse to be subject to any other 
country's laws, better or not. Period. Milton, can you honestly, say, if 
you were not a US citizen, you would have accepted such arguments in 
favour of subjecting an global infrastructure to US law?

> */Political accountability has less to do with which jurisdiction 
> ICANN is incorporated in than you think. The best form of _political_ 
> oversight is ICANN's own MS processes, which are transnational, 
> assuming we make the Board more accountable through a better appeals 
> process and membership./*
>

I did ask you to propose the entire model for this, which then we may be 
able to discuss.

> */ In other words, the polity is global, and political accountability 
> means that ICANN makes and enforces policies that its global 
> constituents want,/*
>

Here, again, Milton, I am unsure how exactly you see things. I have 
heard you say often that ICANN must not look at anything but technical, 
operational and financial criteria, and not get into public policy 
issues, which, although minimal, need to come from an external 
environment. Now, are you suggesting that ICANN directly does its public 
policy too? If so, please give more details about how this will work.

> */that its representative processes are actually representative and 
> its elected officials get thrown out if they do the wrong things. 
> California corporation law is merely a mechanism for giving it a legal 
> personality /*
>

If it *merely* is to give ICANN legal personality, why cant we obtain 
that *mere* legal personality from international law, and do a host 
country agreement..... Would make so many people happy, no.

> */and making it follow certain procedural rules. Yes, it does make a 
> difference that it is in the US rather than, say, Luxembourg or 
> Tanzania, but that should not affect the policies it adopts through 
> its own processes. Once you cut the cord to the US Commerce 
> Department, the fact that it obtains its legal personality in 
> California is not all that relevant. /*
>

Milton, you know that any US non profit, under contract with Dept of 
comm. or not, is subject to all laws, court diktats etc of the US... why 
are you glossing over this clear fact, which has been discussed so much 
here.

> *//*
>
> */ /*
>
> You are saying US law is more accessible and offers better 
> accountability than international law to non US people!!! What a 
> high-handed claim to make!
>
> */[Milton L Mueller] nothing is more high-handed and inaccessible than 
> international law, my friend./*
>

Not more than US law for non US people??? When would US citizen learn to 
think a bit more globally, I mean think globally in a way that is decent 
to all.

> */ When have you ever used international law to do anything important 
> for yourself or other people?/*
>

Havent used US law either. International law is used to configure 
national institutions in many good ways (national women machineries in 
many countries for instance). Now that we are confronted with the 
uniquely global phenomenon of the Internet, about which response would 
indeed need to be faster etc, we should be able to devise international 
law and institutions accordingly, In an earlier email, I mentioned how 
international trade law, and even private international arbitration on 
trade matters, is being increasingly and very frequently used (I know of 
so many cases involving India just over the last year). No reason why we 
cant make innovations in the IG space as well.

> */ I see a few African dictators convicted of war crimes by the ICJ 10 
> years and millions and millions of dollars in court costs after the 
> fact. /*
>
> */ /*
>
> Are you sure you will like to seen saying that kind of a 'silly' thing 
> (a term you use often :) ). May we just have the basic decency to ask 
> non US people if this is what they think :).
>
> */[Milton L Mueller] Sure. Ask anyone you like. But provide a real 
> basis for comparison, i.e., the comparison is about legal personality 
> and not political oversight, and don't wriggle out of the issue by 
> contrasting US law with something that doesn't exist. /*
>

Never the one to wriggle out, my friend. But cant see why what is not 
there cant be created.... we are taking about new international laws and 
institutions here, arent we. And while we are on the subject of 
comparing things with completely unknown and non existent things, you 
have been wriggling out of most internationalisation discussions by 
mentioning some very vague and unclear stuff about trans-nationalism. 
Perhaps you yourself are embarrassed to offer real next steps etc in 
this regard, so exotic the concept is, in many ways. On the other hand, 
I myself, with sympathy for pragmatic movement towards transnationalism, 
did suggest an oversight body with national or regional reps but looking 
at innovating how their selections process can be broadened within the 
systems that they come from.

> *//*
>
> */ /*
>
> */I propose a multiple-choice survey question to be circulated among 
> multinational domain name service operators located in developing 
> world countries: /*
>

The constituency are *people*, not the industry that is regulated by 
ICANN. Many people close to ICANN seem to always get this thing wrong. 
And among people, in general, I am happy for you to do a survey if they 
prefer to be subject to their own country law, international law as 
required, and are happy to do with US law. Please stop selling US law. 
It isnt the best, while it would not have mattered even if it were. 
Democracy is quietly deeply engrained ideology and culture now a days, 
though, what happens and get said in IG spaces do keep alarming me... 
parminder

> *//*
>
> */Would you prefer that ICANN be incorporated under /*
>
> */a) California corporation law, /*
>
> */b) an unspecified international organization host country agreement 
> developed by a collection of governments guided by a new international 
> treaty you don't know the content of, which hasn't been tested in 
> adjudication, and which won't be in place for 10 years; /*
>
> */c) Indian corporation law /*
>
> */d) Chinese corporation law /*
>
> */e) Russian Corporation law or /*
>
> */e) the International Court of Justice in the Hague./*
>
> */ /*
>
> */Go ahead and ask. I'd be as interested in the results as you. We'd 
> all probably learn something. /* *//*
>
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