[governance] DMP} Statement on Process and Objectives for the Global Multistakeholder Meeting on the Future of Internet Governance

[William Drake]

Hi

Um, I mean this in the nicest possible way, as I like Fadi and support what he’s trying to do e.g. with Brazil, but personally I wouldn’t spend a lot of cycles doing deep deconstructions of his every utterance before he’s gotten around to a second or third iteration in which there’s further specification.  He’s an ideas guy with a lot of stuff percolating and a politician who shakes 50 hands and hour and wants each person to go away happy. In consequence, he sometimes says things off the cuff that he’s not anticipated people will go off and try to interpret in order to draw strong immediate conclusions and action plans.  As Rafik notes, his comment on internationalization and Geneva was misreported and had to be clarified.  His comment about welcoming suggestion of a name for the HLP led to a flurry of CS activity and demands that two people be added.  His comments about multi-equal-stakeholderism were I think meant simply to imply a recognition that there needs to be a better balance of influence among players (everyone in ICANN thinks ICANN’s been captured, but nobody agrees by whom).  Similarly, the comment about ICANN being subject to multiple jurisdictions probably wasn’t a thought out proposal for a new and more complex legal architecture as much as a comment about having different offices in different places.  This tendency has helped to stimulate some ribbing, usually good natured, such as the tweet tag #shitfadisays.  So depending on how people like to spend their time, one can either debate back and forth about possible meanings, or you could just shoot him a note and ask what he meant.  In general, I’d think the latter might be more efficient.

Best,

Bill

On Dec 2, 2013, at 2:22 AM, Rafik Dammak <rafik.dammak at gmail.com> wrote:

> Hi Jovan,
> 
> I think the first mention was during APrIGF , saying "legal structure" to describe the geneva "engagement office" (having Tarek Kamel there. who is "advisor on governmental engagement") which opened the door to many interpretations about the purpose and the meaning http://domainincite.com/14390-no-icann-isnt-moving-to-switzerland
> 
> we can add to those offices (Montevideo for example) the new hubs in Singapore and Istanbul
> 
> Best,
> 
> Rafik
> 
> 2013/12/2 Jovan Kurbalija <jovank at diplomacy.edu>
> Hi Norbert,
> 
> It would be useful to have the exact reference to Fadi's comment in order to provide a precise legal analysis. Multiple jurisdictions would lead towards conflict of laws (regulated by international private law).  The Law of the Sea has many examples of concurrent, parallel, and overlapping jurisdictions due to the complex interplay of three core jurisdiction elements: territoriality (coastal state, territorial sea), nationality (flag State jurisdiction), and universality (e.g. against piracy).
> 
>  
> So far, one of the broadest lists of concurrent jurisdictions is in article 109 of the UN Convention of the Law of the Sea (1982):
> 
>  
> ‘Any person engaged in unauthorized broadcasting may be prosecuted before the court of:
> (a) the flag State of the ship;
> (b) the State of registry of the installation;
> (c) the State of which the person is a national;
> (d) any State where the transmissions can be received; or
> (e) any State where authorized radio communication is suffering interference.’
>  
> BTW: I usually send this article to enthusiasts about extending the Law of the Sea to the Internet based on a rather simplistic analogy between the high sea and the Internet (beyond jurisdiction). The Law of the Sea is not very sympathetic to ‘unauthorised broadcasting’ and free flow of information.  
> 
>  
> Back to the question of multiple jurisdiction…
> 
>  
> While one can think on various solutions with multiple jurisdictions, it is not clear how various jurisdictions can be exercised ‘simultaneously’. It would be in breach of the general legal principle ‘ne bis in idem’ (nobody should be prosecuted twice for the same offense).
> 
>  
> This is just a quick reflection. If you can provide more precise questions, it could help in deepening the discussion on IG, jurisdiction, and ICANN.
> 
>  
> Best regards,
> 
>  
> Jovan
> 
> 
> 
> 
> On Sat, Nov 30, 2013 at 12:43 PM, Norbert Bollow <nb at bollow.ch> wrote:
> Carlos A. Afonso <ca at cafonso.ca> wrote:
> 
> > I risk to be bitten by (no, not monkeys, Milton) scorpions here, but
> > if "removal of the source of authority from a single national
> > government and the linkage of its authority over the DNS root zone
> > file to a global polity" is achieved, the need to
> > change/globalize/internationalize ICANN (the organization) becomes a
> > relatively minor issue, n'est pas?
> 
> My perspective on this is that the "removal of the source of authority
> from a single national government and the linkage of its authority over
> the DNS root zone file to a global polity" is IMO primarily of
> symbolic importance, as we have discussed in depth some time ago that
> the degree of real-world power that the executive branch of the US
> government has in the current arrangement is rather limited if it is of
> any significance at all.
> 
> I think that the aspect of jurisdiction is much more important and also
> much more difficult.
> 
> Fadi said in Bali that ICANN could be made subject to multiple
> jurisdictions simultaneously.
> 
> I absolutely don't see how that could possibly work, but maybe someone
> can enlighten me.
> 
> 
> Greetings,
> Norbert
> 

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