[governance] DMP} Statement on Process and Objectives for the Global Multistakeholder Meeting on the Future of Internet Governance
Milton L Mueller
mueller at syr.edu
Mon Dec 2 12:28:49 EST 2013
Jovan
Helpful, thanks. But remember, when we talk about ICANN we are only talking about the governance of unique identifiers (names and numbers) not governance of "the Internet."
Can you elaborate more on what kind of "immunities" you think ICANN - as DNS governor only - would need?
From: Jovan Kurbalija [mailto:jovank at diplomacy.edu]
Sent: Monday, December 2, 2013 9:19 AM
To: governance at lists.igcaucus.org; Milton L Mueller
Cc: parminder
Subject: Re: [governance] DMP} Statement on Process and Objectives for the Global Multistakeholder Meeting on the Future of Internet Governance
Thank you, Milton, Parminder and others for raising this issue. CS and academia have the opportunity to contribute to more informed discussion on jurisdiction and institutional architecture in the preparation for Sao Paolo and beyond. There are two main options (IGO or private organisation) and a few possibilities in between (hybrids):
1. Intergovernmental organisations
This option is clear. The organisation would have to be established by an intergovernmental agreement (convention, treaty, statute). The main advantage of this option is immunity and independence from any national jurisdiction. The main challenge is how to ensure accountability and inclusive governance (involvement of civil society, business, and users communities). It is important to keep in mind that while it can be inter-governmental in making, a new entity could have a much more flexible structure. For example, the ILO was established by governments, but it has a tripartite governance structure consisting of representatives of governments, employers and employees.
2. Private organisations (NGO, business, etc.)
The other main option is to have private organisations registered under national laws; i.e. the current status of ICANN and most international non-profit organisations. They are international in their name and function, but legally speaking they are national entities. The main legal internationalisation of INGOs is provided by the European Convention on the Recognition of the Legal Personality of INGOs (Council of Europe, 1986). There are some arguments that UN-consultative status provides a 'soft law' legal basis, but it is a far-fetched argument.
What are the in between options?
3. Quasi-international organisations
This is part of an innovative legal development initiated in 2007 by the Swiss Federal Council (Ordinance OLEH from 7 December 2007). It provides certain fiscal and legal privileges. This quasi-international status has been granted to the International Air Transport Association, the International Olympic Committee, and the World Conservation Union. The main limitation of this status - so far - is that it does not provide jurisdictional immunity.
4. The International Committee of the Red Cross (ICRC)
The ICRC model has been mentioned as a possible solution for ICANN. The ICRC is a private foundation established under Swiss law while it receives its mandate by international treaties (Geneva conventions). The ICRC together with the International Federation of Red Cross and Red Crescent (IFRC) creates a sometimes complex but carefully balanced system of Red Cross community. There are many checks and balances and accountability mechanisms involving national governments and Red Cross/Red Crescent National Societies (non-governmental entities). The Red Cross model - especially when it comes to accountability - could provide a number of inspiring elements for the future 'IG architecture'
5. Montreaux model
Some ideas for IG could be borrowed from the 'Montreaux model' which deals with international governance of private and security companies. The privatisation of security sector led some countries to request international treaty (so-called Mercenaries convention). Others resisted it. While there were differences in how to regulate them, there was consensus that private security companies should observe human rights and humanitarian law. Based on this convergence point, Switzerland (via DCAF) initiated the private-public process with the Montreaux Document (2008) which outlined the main principles. The next step was the International Code of Conduct for Private Security Service Providers (November 2010) which operationalised the principles. In October this year, the oversight mechanism was established involving government, private sector and civil society. This oversight mechanism is an interesting organisational construct that may inspire some solutions for Internet governance.
6. On a more conceptual level, a solution could be found in identifying the jurisdictional immunities of ICANN for specific activities (not general immunity enjoyed by IGOs). Such a solution could relate well to the modern trend in international law to distinguish immunities of states and IOs for iure imperii (core public function) and iure gestionies (no immunity for contracts and other activities of the organisation).
In 2014, we plan to organise a few brainstorming events in Geneva on the interplay between the Internet, jurisdiction and institutional law. There is a lot of expertise in both the humanitarian and institutional law that could help in finding some innovative solutions for the IG institutional architecture.
Best regards, Jovan
Jovan Kurbalija, Phd
Director, DiploFoundation
Rue de Lausanne 56 | 1202 Geneva | Switzerland
Tel. +41 (0) 22 7410435 | Mobile. +41 (0) 797884226
Email: jovank at diplomacy.edu<mailto:jovank at diplomacy.edu> | Twitter: @jovankurbalija
Note: If you have been waiting for a reply from me, this might explain my tardiness.<http://www.diplomacy.edu/blog/are-you-e-polite-0> Thank you for your patience!
On Sun, Dec 1, 2013 at 7:37 PM, Milton L Mueller <mueller at syr.edu<mailto:mueller at syr.edu>> wrote:
It's a basic error to equate a generic incorporation law with comprehensive regulatory "oversight by the US legal system" as Parminder is doing. I am not sure whether Parminder is just using a rhetorical ploy at this point. But I am not averse to host-country type agreements that would protect ICANN from legislative interference.
An honest argument makes a comparison based on current facts. Regardless of where ICANN is incorporated now, it has to be incorporated somewhere. We are presented so far with 3 choices:
1. a Geneva-based INGO like FIFA or the Red Cross
2. California NPPBL
3. Some new international public law (treaty-based) that we have no experience with and no concrete guarantees regarding its content (because it doesn't exist yet) and which might take 3-10 years to conclude
Take your pick. Open to good arguments for any, as well as hybrids and other ideas. And if you can bring yourself to ignore the commentor's nationality, Karl's argument that any feasible transitional arrangement has to deal with real contracts and assets must be taken into account.
--MM
________________________________
From: governance-request at lists.igcaucus.org<mailto:governance-request at lists.igcaucus.org> [governance-request at lists.igcaucus.org<mailto:governance-request at lists.igcaucus.org>] on behalf of parminder [parminder at itforchange.net<mailto:parminder at itforchange.net>]
Sent: Saturday, November 30, 2013 2:24 AM
To: governance at lists.igcaucus.org<mailto: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 11:10 AM, Rafik Dammak wrote:
<snip>
it is up to Milton to defend his position and I don't think that he defended an continuity of any kind of US control. anyway you can read his ideas in details at his blog.
For sure, I have read them. Yes, he does advocate continued oversight ('control' if you like) by US legal system, or broadly, the US polity, over ICANN, but extinguishing executive controls exercised through US DoC.
But of course Milton can tell us if I am wrong in saying the above... parminder
I made the analogy to FIFA because it is international organisation too if you mean diversity etc but also for the level of corruption and no accountability there. I think that you can see the point here .
we can argue a lot about the legal status of the organisation but what matters at the end is the mechanism for accountability, transparency , openness, inclusiveness .
And as you say if you are not arguing that ICANN "should be an US org under US laws ", then the question is "what kind of org and under what kind of law" do you advocate. Thanks.
I don't have an answer about the legal framework to be used or any other organisational complexity, however I am thinking on how to avoid situation where interests group try to expand trademark law there or governments use GAC to push for content policy through gTLD or eroding privacy rights to match LEA requests without any oversight or in contradiction to ehir own data protection law. I am thinking on how we make the organisation developing users-driven policies and not to respond to narrow governmental or private interests.
coming from a small developing country struggling with a complicated and painful democratic transition, I am more keen to defend citizen interests and not by any geopolitical interests of some governments
Rafik
parminder
I have a question, maybe naive: if we have problem with one state to have dominant role as assumed by mant, how adding more states will solve the problem , a kind of zero sum game?
another question, what benefit for the average users far from any geopolitical consideration in such case?
Rafik
2013/11/30 parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>
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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