[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal

Bertrand de La Chapelle bdelachapelle at gmail.com
Tue Jun 9 11:21:08 EDT 2015 

Parminder,

The link does not seem to work in your paragraph below. Can you :

*That is one definition of the term, looking at it from a domestic point of
view. Here <http://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. *


As for setting ICANN "under international law", unless I am mistaken (and I
may very well overlook other ways), I see basically three ways:

   1. the traditional one for the creation of international organizations,
   ie: an intergovernmental treaty
   2. providing ICANN in whatever jurisdiction it may be incorporated (US
   or other), with privileges and immunities that would make its decisions non
   susceptible of recourse in front of the local courts
   3. invent a new type of international organization, founded by a
   diversity of stakeholders (and not only governments), with appropriate
   independence and guarantees


Are you advocating in favor of option 1)?

Would you be amenable to option 2), if there are sufficient accountability
mechanisms (including the enhanced IRP proposed by the CCWG)?

Do you have suggestions regarding option 3)? We would all be happy to
identify a new approach.

Best

Bertrand




"*Le plus beau métier des hommes, c'est d'unir les hommes*", Antoine de
Saint Exupéry
("*There is no greater mission for humans than uniting humans*")BERTRAND DE
LA CHAPELLEInternet & Jurisdiction Project | Directoremail
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On Tue, Jun 9, 2015 at 4:48 PM, parminder <parminder at itforchange.net> wrote:

>
>
> 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 <http://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> 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 im Auftrag von parminder
>> Gesendet: Di 09.06.2015 15 <09.06.2015%2015>:41
>> An: 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> 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
>> >> > Program Chair, We Robot 2016 | +1 (305) 284-4285 |  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
> Blog <http://internationallawandtheinternet.blogspot.com/> | SSRN
> <http://ssrn.com/author=1957909> | Google Scholar
> <http://scholar.google.ch/citations?user=8jRGt2QAAAAJ> | Twitter
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>
> Recent publications:
> The Common Interest in International Law (2014, co-editor)
> <http://www.intersentia.co.uk/searchDetail.aspx?bookId=103066&authors=Wolfgang>
> European Yearbook on Human Rights 2014 (2014, co-editor)
> <http://www.nwv.at/recht/verfassungsrecht/1077_european_yearbook_on_human_rights_2014/>
> Freedom of Expression and the Internet (2014, co-author)
> <https://book.coe.int/eur/en/human-rights-and-democracy/5810-freedom-of-expression-and-the-internet.html>
>
>
>
>
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