[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
parminder
parminder at itforchange.net
Tue Jun 9 10:48:37 EDT 2015
On Tuesday 09 June 2015 07:39 PM, Matthias C. Kettemann wrote:
> Dear all,
>
> we should really be careful in using legal terminology. "International
> jurisdiction" usually means that in light of an international set of
> facts the courts of a certain country will be most suited to hear the
> case (see e.g. here
> <http://ec.europa.eu/justice/glossary/international-jurisdiction_en.htm>).
That is one definition of the term, looking at it from a domestic point
of view. Here <International%20jurisdiction> is another way to look at
it, coming from a global point of view - and of course this current
discussion comes from a global point of view.
> Conflicts of jurisdiciton (and conflicts of law) are a daily occurence
> in online settings. International courts, however, are a different
> matter entirely. They are few and far between and, in their present
> design, are not in a position to ensure accountability. For that we
> need more permanent oversight structures. I'm not convinced that only
> a national legal anchor can do the trick.
That is the point. So then what international option do we have? If we
are to live a common digital future, with an adequately global Internet,
we have to find the necessary legal and political ways to do it, even if
they do not exist today. I am much more convinced than others here that
there is enough existing that can be evolved in the right direction -
but to do that the political will has to first be stated and worked with.
If international law and jurisdiction can be begun to be evolved in such
a complex and contested area like international crime, it should
certainly be so much easier to do with regard to management of basic
techno-logical infrastructure of the Internet, where there is, at least
at present, so less to dispute, and the positive advantage so huge.
Please note this sentence from the submission of Roberto Bissio, a top
global civil society leader, made to the CCWG process - he is an
official adviser to the process. (This submission was earlier forwarded
by Carlos to these elists, but I am enclosing it again.)
"The International Criminal Court was negotiated and ratified in as much
time as the discussion of the governance of ICANN is already taking."
Does this say something?
And do we not know what kind of international innovations are daily
invented, like in the area of IP enforcement, and trade dispute
settlement, and now also 'investor protection' for global corporates
from domestic policies/ law and even courts, when it is in the interest
of the most powerful countries. Why do we then shy away from
institutional innovations when genuine public interest is involved. It
is a case of greater internationalisation where it suits them, and full
scepticism about international law and jurisdiction where is does not.
That is not ok.
parminder
> International law, however, does not yet provide for accountability
> structures for the 'management' and administration of the stability,
> security etc. of the global Internet.
>
> Kind regards
>
> Matthias
>
>
> On Tue, Jun 9, 2015 at 3:49 PM, "Kleinwächter, Wolfgang"
> <wolfgang.kleinwaechter at medienkomm.uni-halle.de
> <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>> wrote:
>
> Hi Parminder,
>
> can you specify what do you understand under "international
> jurisdiction"? Do you want to create an "International (Internet)
> Court"? Do you want to have ICANN under the International Court of
> Justice in The Hague? International Courts are created by
> intergovernmental treaties. Here is a list of "International Courts":
> http://en.wikipedia.org/wiki/International_court.
>
> Wolfgang
>
>
>
>
>
>
> -----Ursprüngliche Nachricht-----
> Von: governance-request at lists.igcaucus.org
> <mailto:governance-request at lists.igcaucus.org> im Auftrag von
> parminder
> Gesendet: Di 09.06.2015 15 <tel:09.06.2015%2015>:41
> An: governance at lists.igcaucus.org
> <mailto:governance at lists.igcaucus.org>; Michael Froomkin - U.Miami
> School of Law; Mawaki Chango
> Betreff: Re: [governance] IANA transition - BR Gov comments on the
> CCWG-Accountability Draft Proposal
>
>
>
> On Tuesday 09 June 2015 06:26 PM, Michael Froomkin - U.Miami School of
> Law wrote:
> >
> > I think that bodies which do not need to fear supervision by
> > legitimate courts end up like FIFA. FIFA had a legal status in
> > Switzerland that basically insulated it the way that the Brazilian
> > document seems to suggest would be what they want for ICANN. (It's
> > also the legal status ICANN has at times suggested it would like.)
> >
> > The lesson of history seems unusually clear here.
>
> Agree that ICANN cannot be left jurisdictionally un-supervised - that
> may be even more dangerous than the present situation. However, the
> right supervision or oversight is of international jurisdiction
> and law,
> not that of the US . This is what Brazil has to make upfront as the
> implication of what it is really seeking, and its shyness and
> reticence
> to say so is what I noted as surprising in an earlier email in this
> thread. Not putting out clearly what exactly it wants would lead to
> misconceptions about its position, which IMHO can be seen from how
> Michael reads it. I am sure this is not how Brazil meant it - to free
> ICANN from all kinds of jurisdictional oversight whatsoever - but then
> Brazil needs to say clearly what is it that it wants, and how can
> it can
> obtained. Brazil, please come out of your NetMundial hangover and take
> political responsibility for what you say and seek!
>
> parminder
>
>
> >
> > On Tue, 9 Jun 2015, Mawaki Chango wrote:
> >
> >>
> >> It's good to see a law scholar involved in this discussion. I'll
> >> leave it to the Brazilian party to
> >> ultimate tell whether your reading is correct or not. In the
> meantime
> >> I'd volunteer the following
> >> comments.
> >>
> >> On Jun 8, 2015 10:46 PM, "Michael Froomkin - U.Miami School of Law"
> >> <froomkin at law.miami.edu <mailto:froomkin at law.miami.edu>> wrote:
> >> >
> >> > Perhaps I'm misreading something, but I read this document to
> make
> >> the following assertions:
> >> >
> >> > 1. All restrictions on ICANN's location must be removed.
> >> >
> >>
> >> And the question reopened for deliberation by all stakeholders,
> >> including governments among others.
> >> Only the outcome of such deliberation will be fully legitimate
> within
> >> the framework of the post-2015
> >> ICANN.
> >>
> >> > 2. ICANN does not have to leave the US but must be located in a
> >> place where the governing law has
> >> certain characteristics, including not having the possibiliity that
> >> courts overrule ICANN (or at
> >> least the IRP).
> >> >
> >> > (And, as it happens, the US is not such a place....)
> >> >
> >>
> >> Not only avoiding courts overruling relevant outcomes of the
> Internet
> >> global community processes,
> >> but also examining and resolving the possible
> interferences/conflicts
> >> that might arise for
> >> government representatives being subject to a foreign country law
> >> simply in the process of attending
> >> to their regular duties (if they were to be fully engaged with
> ICANN).
> >>
> >> Quote:
> >> "From the Brazilian perspective the existing structure clearly
> imposes limits to the participation
> >>
> > ??
> > ?of governmental representatives, as it is unlikely that a
> representative of a foreign government wi
> >> ll be authorized (by its own government) to formally accept a
> position in a body pertaining to a U.
> >>
> >> S. corporation."
> >>
> >> This may be what you're getting at with your point 3 below, but I'm
> >> not sure whether the problem is
> >> only the fact that governments have to deal with a corporate
> form/law
> >> or whether it is altogether
> >> the fact that it is a single country law without any form of
> >> deliberate endorsement by the other
> >> governments (who also have law making power in their respective
> >> country just as the US government).
> >>
> >> Assuming your reading is correct, and if necessary complemented
> by my
> >> remarks above, I'd be
> >> interested in hearing from you about any issues you may see
> with the
> >> BR gov comments.
> >> Thanks,
> >>
> >> Mawaki
> >>
> >> >
> >> > 3. ICANN doesn't have to change its form, but it needs a form
> where
> >> governments are comfortable.
> >> >
> >> > (And, as it happens, the corporate form is not such a form....)
> >> >
> >> >
> >> > What am I missing?
> >> >
> >> >
> >> >
> >> > On Sat, 6 Jun 2015, Carlos A. Afonso wrote:
> >> >
> >> >> For the ones who are following the IANA transition process:
> attached
> >> >> please find the comments posted by the government of Brazil on
> >> June 03,
> >> >> 2015, in response to the call for public comments on the
> >> >> CCWG-Accountability Initial Draft Proposal.
> >> >>
> >> >> I generally agree with the comments.
> >> >>
> >> >> fraternal regards
> >> >>
> >> >> --c.a.
> >> >>
> >> >
> >> > --
> >> > A. Michael Froomkin, http://law.tm
> >> > Laurie Silvers & Mitchell Rubenstein Distinguished Professor
> of Law
> >> > Editor, Jotwell: The Journal of Things We Like (Lots),
> jotwell.com <http://jotwell.com>
> >> > Program Chair, We Robot 2016 | +1 (305) 284-4285
> <tel:%2B1%20%28305%29%20284-4285> | froomkin at law.tm
> <mailto:froomkin at law.tm>
> >> > U. Miami School of Law, P.O. Box 248087, Coral Gables, FL
> 33124 USA
> >> > -->It's warm here.<--
> >> > ____________________________________________________________
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> --
>
> Dr. Matthias C. Kettemann, LL.M. (Harvard)
> Post-Doc Fellow | Cluster of Excellence „
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>Normative
> Orders
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>”
> <http://www.normativeorders.net/de/organisation/mitarbeiter-a-z/person/442>,
> University of Frankfurt am Main
> Lecturer | Institute of International Law andInternational Relations
> <http://voelkerrecht.uni-graz.at/en/>, University of Graz
> <http://trainingszentrum-menschenrechte.uni-graz.at/en/infos-fuer-studierende/>
>
> Goethe-Universität Frankfurt am Main
> Exzellenzcluster „Normative Ordnungen“
> Max-Horkheimer-Straße 2
> 60629 Frankfurt am Main / Germany
>
> E | matthias.kettemann at gmail.com <mailto:matthias.kettemann at gmail.com>
> Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
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