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

Mawaki Chango kichango at gmail.com
Tue Jun 9 11:30:58 EDT 2015 

Just a question here...

Between one de facto national/country law such as US' and the FIFA scenario
(or a country where the courts might be too deferential to international
bodies), is there possibly room for some institutional creativity?

>From what BR gov is saying, simply replacing one country law with another
would not do the trick. If the community deliberation (involving also
governments) based on the systematic assessment of the jurisdiction
candidates short listed shows preference for US or Canada jurisdiction,
would it be possible at all then to put in place a protocol which any
governments may (and will be encouraged to) sign as a way of recognition of
the selected country law to govern ICANN matters?

That way, governments will still have a formal framework for their official
reps engaging in ICANN's activities (abiding by its valid decisions or
challenging them only in the recognized courts) without the need for an
international treaty?

Note that once the "legal status" question and the selection of law and
jurisdiction has been properly settled through a community due process, the
law and jurisdiction chosen will apply anyway. The protocol idea is for
governments who are willing to engage fully with ICANN and even assume
responsibility within the organization to have a formal ground and
framework to do so with regard to the governing law.

Make sense?

/Brought to you by Mawaki's droid agent
On Jun 9, 2015 2:23 PM, "Michael Palage" <mike at palage.com> wrote:

> Hello All,
>
>
>
> For those seeking clarification of “international” law/jurisdiction in the
> context of ICANN governance.  It would be helpful to reference the often
> overlooked provision in the ICANN Articles of Incorporation,
> https://www.icann.org/resources/pages/governance/articles-en  which state
> in relevant part that:
>
>
>
> 4. The Corporation shall operate for the benefit of the Internet community
> as a whole, carrying out its activities in conformity with relevant
> principles of international law and applicable international conventions
> and local law and, to the extent appropriate and consistent with these
> Articles and its Bylaws, through open and transparent processes that enable
> competition and open entry in Internet-related markets. To this effect, the
> Corporation shall cooperate as appropriate with relevant international
> organizations.
>
>
>
> This provision in the bylaws was in fact one of the issues that was
> briefed and discussed by the parties in the original IRP involving ICANN
> and ICM registry.
>
>
>
> Best regards,
>
>
>
> Michael Palage
>
>
>
> *From:* governance-request at lists.igcaucus.org [mailto:
> governance-request at lists.igcaucus.org] *On Behalf Of *Matthias C.
> Kettemann
> *Sent:* Tuesday, June 9, 2015 10:10 AM
> *To:* governance at lists.igcaucus.org; Kleinwächter, Wolfgang
> *Cc:* parminder; Michael Froomkin - U.Miami School of Law; Mawaki Chango
> *Subject:* Re: [governance] IANA transition - BR Gov comments on the
> CCWG-Accountability Draft Proposal
>
>
>
> 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>).
> 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. 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 15:41
> 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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> >>
> >>
> >>
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> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >>
> >> > ____________________________________________________________
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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
>
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