[governance] DMP} Statement on Process and Objectives for the Global Multistakeholder Meeting on the Future of Internet Governance
Jovan Kurbalija
jovank at diplomacy.edu
Sun Dec 8 18:33:39 EST 2013
Hi Milton, here are a few reflections on your questions about the
practicalities of the inviolability of the root database:
http://www.diplomacy.edu/blog/international-inviolability-root-zone
The main points are:
- root zone issues, like diplomacy, have a high symbolic relevance both
for the USA (US invention), and other countries (equality among countries
in managing the Internet as a global critical infrastructure).
- Some elements of diplomatic inviolability and immunity can be employed
in addressing the root zone issue.
- The root database can enjoy inviolability either as such (*in rem*) or
via the physical server where it is loaded.
- Root database inviolability would be ensured either through a new
‘root convention', or through the identification of the customary law (e.g.
the fact that the USA has never acted unilaterally in management of domains
of other countries). One option for the identification of the customary
law, could be a request for an Advisory Opinion from the International
Court of Justice.
- A more complex question is the management of the root database. There
are a few ideas, including the double-key approach, ICANN+ as a
quasi-international organisation, use of the reformed UN Trusteeship
Council as part of the new architecture, etc.
- The closest institutional analogy for a possible ICANN+ as
quasi-international organisation would be the International Committee on
the Red Cross.
- Root zone arrangement (inviolability) could be a reasonable compromise
in the current IG debate. Sao Paolo could be the first step in developing
this compromise solution.
Let me know your comments.
Regards, Jovan
*Jovan Kurbalija*
Director, DiploFoundation
*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 Mon, Dec 2, 2013 at 8:28 PM, Milton L Mueller <mueller at syr.edu> wrote:
> 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 *| **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> 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 [
> governance-request at lists.igcaucus.org] on behalf of parminder [
> parminder at itforchange.net]
> *Sent:* Saturday, November 30, 2013 2:24 AM
> *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 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>
>
>
>
> 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>
>
> 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]
> *Sent:* Friday, November 29, 2013 7:49 PM
> *To:* 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<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
> *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> 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
>
> @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>:
>
> 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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