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

parminder parminder at itforchange.net
Mon Dec 2 04:28:22 EST 2013


On Sunday 01 December 2013 11:45 PM, Milton L Mueller wrote:
> Parminder,
> 2 questions for you.
>
> 1. By US laws you mean merely that ICANN is incorporated in California 
> under its nonprofit corp law?

That,  but more importantly, the fact that as a US entity it is subject 
to each and every law of the US.... (The jurisdiction and nature  of 
incorporation does also impact the nature of application of other laws 
in various domains to any given organisation).

Well, I have asked this question here often, but let me ask you directly 
one more time.

You know that .xxx has been challenged in a US court on anti-competitive 
grounds. The basic merit of the case has been judicially tested and the 
case has been found prima facie admissible. Obvious it is quite likely 
that a US court could find ICANN's decision to  institute the .xxx 
domain as violating US competition laws (or some other laws). It would 
be within the court's competence to strike down ICANN's decision on 
.xxx. In fact, it can even go further and ask ICANN to review/ change 
some of its polices and procedures in light of such an judgement, which 
as a precedence establishes a kind of law...

If this is to happen, which is a very plausible scenario, my question to 
you is, what happens to ICANN's status as a global governance body , .. 
In fact with the onrush of new gTLDs sooner or later some negative US 
court rulings on ICANN's decisions are inevitable... Would we begin 
thinking only after the crisis strikes - which no doubt it will one day 
-  how to insulate ICANN from such interference from the US jurisdiction?

Another scenario: With closed generics being now allowed  (something you 
supported enthusiastically), a gTLD space can become just an arm of of a 
corporation, a part of its private work and networking space... Now, 
lets say a generic drugs company in India was to start a global online 
generic drugs operation and use a closed gTLD, say, dot cheap-medicines, 
for that purpose - just to facilitate its global operations... Lets say 
that this operation falls foul with the Federal Trade Commission or IP 
commission or whoever and also US drug companies raise huge stink - and 
as a consequence,  an executive, regulatory or court authority instructs 
the US Office of Foreign Assets Control to take measures to seize the 
company's digital assets in the US, the chief among which could be the 
concerned gTLD. Does ICANN have an option other than to comply?

Hundreds of such scenarios can be presented....


> That law does not make ICANN subject to US policy (although the MoU 
> did, the IANA contract still does to some extent, and the Affirmation 
> of Commitments also incorporates elements of US policy).

It makes it subject to US law. Also any policy can any time be converted 
into a law.

> Are you confusing policy with law?

:)

>
> 2. If ICANN is incorporated under any other nation's laws, including 
> Switzerland's, is it not also subject to a specific state's laws?

We all know there is something called incorporation under international 
law, and corresponding immunity from domestic jurisdictions... WIPO and 
WTO can freely take substantive international decisions that may violate 
Swiss law. They are not subject to Swiss law... And you know it as well..

parminder
>
>
>
> ------------------------------------------------------------------------
> *From:* governance-request at lists.igcaucus.org 
> [governance-request at lists.igcaucus.org] on behalf of parminder 
> [parminder at itforchange.net]
> *Sent:* Friday, November 29, 2013 11:56 PM
> *To:* governance at lists.igcaucus.org
> *Subject:* Re: [governance] DMP} Statement on Process and Objectives 
> for the Global Multistakeholder Meeting on the Future of Internet 
> Governance
>
>
> On Saturday 30 November 2013 10:19 AM, Rafik Dammak wrote:
>> yes Milton it will make it  the FIFA of IG world
>>
>> Rafik
>
> Rafik, do you in that case agree that ICANN should remain an US 
> organisation, subject solely to US laws... parminder
>
>>
>> 2013/11/30 Milton L Mueller <mueller at syr.edu <mailto:mueller at syr.edu>>
>>
>>     No, no, no, please. That level of specificity is
>>     counterproductive at this stage. Many people who have studied
>>     this issue believe that turning ICANN into an INGO is the surest
>>     way for it to escape what little accountability it currently has.
>>     Those willing to go along with a general call for reform in
>>     ICANN’s US-centered oversight need not commit themselves to a
>>     particular solution at this point, and the language below does that.
>>
>>     Please don’t come up with off the cuff quickie solutions for
>>     this. It will take more than a scan of Wikipedia to solve.
>>
>>     *From:*michael gurstein [mailto:gurstein at gmail.com
>>     <mailto:gurstein at gmail.com>]
>>     *Sent:* Friday, November 29, 2013 7:49 PM
>>     *To:* governance at lists.igcaucus.org
>>     <mailto:governance at lists.igcaucus.org>; 'Tracy F. Hackshaw @ Google'
>>     *Cc:* 'Norbert Bollow'; Milton L Mueller
>>     *Subject:* RE: [governance] DMP} Statement on Process and
>>     Objectives for the Global Multistakeholder Meeting on the Future
>>     of Internet Governance
>>
>>     What about
>>
>>     1)Transitioning ICANN and IANA to an International
>>     Non-Governmental Organization (INGO) status: The Global Meeting
>>     should aim at developing a suitable and widely acceptable means
>>     to achieve the desired transition of ICANN and IANA away from its
>>     links to the USG and
>>
>>     http://en.wikipedia.org/wiki/International_nongovernmental_organization
>>
>>     M
>>
>>     *From:*governance-request at lists.igcaucus.org
>>     <mailto:governance-request at lists.igcaucus.org>
>>     [mailto:governance-request at lists.igcaucus.org] *On Behalf Of
>>     *Tracy F. Hackshaw @ Google
>>     *Sent:* Friday, November 29, 2013 2:39 PM
>>     *To:* governance at lists.igcaucus.org
>>     <mailto:governance at lists.igcaucus.org>
>>     *Cc:* Norbert Bollow; Milton L Mueller
>>     *Subject:* Re: [governance] DMP} Statement on Process and
>>     Objectives for the Global Multistakeholder Meeting on the Future
>>     of Internet Governance
>>
>>     ICANN (and its President/CEO) have been "encouraged" at several
>>     opportunities to adjust its "internationalization"
>>     rhetoric/terminology and thus its resulting INTERNATIONALIZATION
>>     thrust to one which is significantly more embrasive of the
>>     objectives of, and indeed, spirit of what GLOBALIZATION in
>>     theory, intends to achieve.
>>
>>     I believe therefore that Milton's recommendation is timely and
>>     appropriate ... whether we use the term "Globalization" or a
>>     perhaps more compromising and less economics/free-market linked
>>     phrase or term such as "Global Integration", or more radically,
>>     "Glocalization".
>>
>>     ------
>>     Rgds,
>>
>>     Tracy
>>
>>     On Nov 29, 2013 4:52 PM, "Jean-Christophe NOTHIAS I The Global
>>     Journal" <jc.nothias at theglobaljournal.net
>>     <mailto:jc.nothias at theglobaljournal.net>> wrote:
>>
>>     Dear Norbert, Dear Milton,
>>
>>     If I may contribute, with a somehow different and unusual
>>     perspective, and in my humble Global Governance
>>     observer capacity,  for the pleasure of the reflection:
>>
>>     *Internationalization*: one wants to have a larger international
>>     basis: more offices, more representatives, more of a network of
>>     local branches that, being put together, creates an international
>>     network. Still each element is mostly comparable to the starting
>>     point in terms of culture, thinking... Clones spread around the
>>     world? 'One for all' kind of uniformity. /Meaning many little
>>     ICANNs all around. /
>>
>>     *Globalization*: this could happen without a network of offices
>>     around the world. You can observe a very globalized entity
>>     containing so many different elements, co-exisiting, still
>>     assembling one strong outlet with a governance of its own, but
>>     embracing 'solutions' that could fit more than one single
>>     corporation, institution, nation. One voice, many voices... in a
>>     single global body. So one ICANN speaking from one point to the
>>     many in a global manner of thinking.
>>
>>     /Meaning one ICANN with a big global mind./
>>
>>     *Transnationalization*: this tends to establish a community of
>>     people based in various locations, trying to forget about their
>>     local identity, interest or belonging, with the objective to
>>     address a more common, regional, transnational, trans-sectorial
>>     issue. A way to achieve an understanding of global magnitude.
>>
>>     /Meaning one ICANN talking to other minds./
>>
>>     - The first option has a few advantages. You keep a greater
>>     control over the network, and at the end of the day, you can
>>     pretend to be a global minded outlet. Good communication value.
>>
>>     - The second option is probably the most difficult to achieve,
>>     specially if you are not starting from a fully independent
>>     culture. Very challenging when one starts from a private or
>>     national basis.
>>
>>     - The third option might be a good compromise, if each one puts
>>     trust in the other minds ('nods'?). But maybe a more sustainable
>>     approach, and ultimately, one that could deliver a true global
>>     minded system.
>>
>>     Obviously, very much to be criticized, but at least worth trying
>>     to explore. And quiet appropriate with the current state of the
>>     IG debate.
>>
>>     Semantic has a lasting effect over the narrative and the ultimate
>>     objective. A little bit like 'multistakeholder' which has emerged
>>     from the corporate jargon (to soften counter forces or opponents,
>>     executives would convene 'stakeholders' to the table for
>>     consultation (trade union, politician...). A pure communication
>>     tool. Plus, it has a very poor stable definition and
>>     understanding, and an even looser legal impact. Something that
>>     usually brings a lot of misunderstandings, deadlocks...
>>
>>     All the best,
>>
>>     __________________________
>>
>>     Jean-Christophe Nothias
>>     Editor in Chief
>>     jc.nothias at theglobaljournal.net
>>     <mailto:jc.nothias at theglobaljournal.net>
>>
>>     @jc_nothias
>>
>>     Le 29 nov. 2013 à 20:52, Norbert Bollow a écrit :
>>
>>     Am Fri, 29 Nov 2013 19:28:57 +0000
>>     schrieb Milton L Mueller <mueller at syr.edu <mailto:mueller at syr.edu>>:
>>
>>     Recognizing that this is a late intervention (Thursday a big family
>>
>>         holiday in the US), is it possible to replace the word
>>
>>         "internationalization" with "globalization"? Increasingly we
>>         live in
>>
>>         a world where nations, and by extension the "inter-national"
>>         is not
>>
>>         an adequate term to define transborder, global phenomena
>>
>>
>>     That's IMO a very valid point. Even though nation states and their
>>     governments of course continue to have a significant role, it has
>>     certainly become inadequate to try to understand transborder, global
>>     phenomena by the method (that was helpful in earlier times) of
>>     decomposing into what is happening at the national level plus what is
>>     happening in inter-national trade and other areas of inter-national
>>     relations.
>>
>>     On the other hand, many civil society people including myself are
>>     very
>>     wary of the term "globalization", as globalization has often
>>     increased
>>     social injustices while doing nothing to resolve the kinds of
>>     concerns
>>     that the further "internationalization" of ICANN is intended to
>>     address.
>>
>>     Maybe yet another term could be used???
>>
>>     Greetings,
>>     Norbert
>>
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