[governance] "Oversight"

[Avri Doria]

In the tradition of fools treading where angels don't dare, some comments inset.

avri


parminder <parminder at itforchange.net> wrote:

>
>
>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. 

While I do not go so far as to agree with MM that there is no such thing as International Law, I would have to agree that there is little to no International contractual law.  I do not think it is possible to create an international contract.  All contracts, as far as I know are under national jurisdiction.

(Like MM I am not a lawyer, don't play one on TV and dont even pretend to be one.  I did however, have the misfortune to grow up the child of lawyers and lived at a law school while in high school where that is all ever any talked about, well almost. So it allow me the presumption necessary to make a fool of themselves while speaking of things beyond their ken.)

To internationalize ICANN or any other body requires finding a country that will host the organization.  Then it becomes a case of defining what authorities the organization repsonds to in various matterrs, sometimes it can be municipal jurisdiction in terms of local ordinace and labor practices, and sometime it can international tribuanls in terms of policy issues.

> Why do all the arguments change 
>when we transit from US law to international law.
>

Since ICANN 'regualtes' (in so far as it admits to fulfilling a regulatory function), it dos so by the use of contracts.  Since contracts only work within a national jurisdiction, we have a problem that needs to be solved in the process of internationalization.  I think it can be done, but it will require cleverness and willingness.  Unfortunately most of the cleverness is put to other purposes and willingness seems fleeting, when it does exist.

>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'. 

I was part of the process, so will give answers from my perspective.  I should note that with a third person, I co-authored a proposal with MM that very much resembles the decision that was eventually made. This proposal   can be found at: < https://community.icann.org/index.cgi?camv3 >
So I do have a bias.

Before judging the work, I do recommend that people go back and read the work:
https://community.icann.org/display/gnsovertint/Vertical+Integration+PDP+Working+Group

>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 


I remember that several countries competition authorites were spoken to.  I would have to go through records, which I am not inclined to do right now, to get the names of those countries.  The US was certainly among them, but there were others. .  

> Apparently, the inputs from US's competition 
>authorities helped ICANN take this most retrograde decision. 

I disagree with it being regressive.  
The idea people like me had in mind was that there would be single owners of TLDs who should not have to pay a fee to some registrar, just to register internal names.

The other concern was for IDNs, since there were not many IDN capable registrars, certainly none in developing areas, and since many of hoped there would be many IDN aplications (a hope that was dashed by the incredibly poor outreach ICANN did on the new gTLD program) we wanted to make sure that new IDN registries would not be held hostage to US based registrars.

> 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.
>

I look forward to your explanation.  I do not remember whether they were anmong the ones consulted.
I assume you will be consulting with the Indian competion authorities in preparing you anser, so it will be a good things.

Most who were consulted told us that unless there was market power, they did not care.

Of course we can have fun discussions about what market power rreally means

>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?
>

I am a US citizen, and would have no trouble with various other country's laws..
I can say that honestly.  I would be very happy to have ICANN, e.g., ruled under EU privacy Law.
Note - I am not saying I would accept anyone's law, but for me at least, this US citizen does not require US law to feel safe, in fact sometime US law often makes me feel distinctly unsafe, eg. patriot act and all the other insane security laws we are enacting by the bushel.

>> */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.
>

I know you did not ask me (though someone did), and I haven't proposed one, but I think the questions is a straw dog.
I think the model has to be worked out in a multistakeholder way.
I am sure I could not possibly accept a model that either you or MM hashed out, and would probably even have trouble with one you 2 agreed on.\

To ask an individual to provide a fully fleshed out model is yet nother polemic device, sounds good but ...

>> */ 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.
>


I am fine with genuine multistakeholder organizations to do policy.  
And I wait anxiously for the day when ICANN becomes one instead of just pretending to be one.

>> */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 /*
>>
 

As you know I don't have much faith in representative democracy
It can be bought with money, propoganda and fear.
And bread and circuses.

I like a particpatory model, which includes elements of representative, direct and advocratic democracy

>



>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.
>

Here I agree with you.  I just think we have a lot of details to work out.


>> */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. /*
>>
>

Again, I think I agree.

>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./*
>>
>

(advice my mother did not give, but should have, never get  in the middle an argument about who is being more high handed.)

>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.
>

Most people in the US don't know there is an global whatever.

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

International Law is the only thing that brings war criminals to heel.  The law of the seas, another aspect on Internation al law has also been critical to many nation's well being - try telling US fishermen that the law of the seas is irrelevant.  International law can be useful, in the instance of various empowered international tribunals, to resolve all finds of disputes.  But it is a complicated field and can't just be accepted or dismissed in an IGC email exchange.  It can work, but it is not as easy as using a legal package to create a contract.  If ICANN were to be Internationalized, one of my fonder hopes for the future, it would need to be set up in a way that used the various instruments and tools that have been created over the years.

But in essence, it would invovle creating a set of rules and conditions by which the organization would be run and the oversight mechansims that would be utilized to resolve conflicts and to deal with the times that the organzations rules and regualtions were not adhered to. It is true that when moving to Internatlionalization there is not a one size fits all set of rules that apply, the organization has to decide for itself what rules it will adhere to and the host country/countries have to agree that this is a sensible set of rules.

>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. /*
>>

This minimizes what has been achieved thorugh the use of the tools of international law.
 
>> */ /*
>>
>> 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. /*
>>
>

To set up the argument this way is an unreasonable polemic.  International law exists.  You may not recognize it, but that does not mean it does not exist, it just means you are not recognizing the rules that govern many things in the world you live.  In fact even the US Constituion recognizes the authority of International law that the senate has agreed to.

>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
>

Well among the constituencies in ICANN, some are industry in some cases, and some are people and some are government.  Of course it is only the ones that are composed of industry or government that get listened to.   But that is another issue.

>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
>

I do not see how anyone could sell US law as the best.
Then again, I do not see how anoyone could sell any specific as the best.  Sure we can pick a field in which some country's laws seem preferabllllllle to others.

But a country that still executes people and calls corporations people in a legal sense could hardy be the top of the heap.
This is not to mention the patriot act and sorts of other repressive regimes that allows the government to spy on it people.
Or how about the riders to the defense act that allows for permanent adminstrative incarceration?
Yeah US Law is the best is what universe?

>> *//*
>>
>> */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. /* *//*
>>

I take B.
With recourse to E or some other appropriate International Tribunal.


-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.igcaucus.org
To be removed from the list, visit:
     http://www.igcaucus.org/unsubscribing

For all other list information and functions, see:
     http://lists.igcaucus.org/info/governance
To edit your profile and to find the IGC's charter, see:
     http://www.igcaucus.org/

Translate this email: http://translate.google.com/translate_t