[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Michael Froomkin - U.Miami School of Law
froomkin at law.miami.edu
Tue Jun 9 11:39:22 EDT 2015
On Tue, 9 Jun 2015, parminder wrote:
> Are you saying that it is not possible for ICANN to undertake the functions that it needs to
> undertake while being an international institution incorporated under international law, and free
> from any countries jurisdiction in terms of its basic governance functions? I just want to be clear.
I don't know what an "an international institution incorporated under
international law" is except bodies like FIFA (under Swiss law), or UN
bodies, or sui generis treaty bodies. It is certainly *possible* for
ICANN to have any of those statuses and to "function"; as far as I can
tell, however, it's just not possible to build in meaningful
accountability in those structures.
There is no general international law of incorporation of which I am
aware. Corporate (formation) law is all national law. That is the
reality that must be confronted. There is no place I can go to get an
international corporate charter, and good thing too - why should I be able
to exempt myself from national law?
>
> If so, that would be an interesting assertion. Now, I am sure this is not true. However, I am not an
> international legal expert and not able to right now build and present the whole scenario for you on
> how it can be done. I am sure there are a number of international organisations that do different
> kind of complex activities and have found ways to do it under international law and jurisdiction.
But those are in the main treaty bodies.
> And if some new directions and evolutions are needed that can also be worked out (please see my last
> email on this count).
>
Here we just disagree. I see the task as monsterously hard, the work of
a decade or more.
> BTW it is a sad statement on the geo political economy of knowledge production in this area that
> there is not one full fledged scenario developed by anyone on how ICANN can undertakes its
> activities under international law/ jurisdiction - which I am pretty sure it can. Many parties,
> including governments have called for it, and yes I agree someone should come up with a full
> politico-legal and institutional description of how it can and should be done - with all the details
> in place. And that is the sad part of it, of how things stand at the global level, had now lopsided
> is resource distribution, all kinds of resources.
>
Alas.
> Not to shy away from responsibility - I am happy to collaborate with anyone if someone can out time
> into it.
>
> And no, it cannot be solved by any other country jurisdiction. Apart from it being still being wrong
> in principle, how would US accept that another jurisdiction is better than its own and accede to
> such a change. Accepting the patently justified fact that an international infrastructure should be
> governed internationally, on the other hand, is much easier .
>
I would not dismiss this so quickly. I take a substantial fraction of the
opposition to US residual control (for that is all we are talking about)
to be tied to the US's status as defacto hegemon. Moving ICANN to another
state with a strong human rights record would answer that part of the
critique.
In my view, a bespoke international structure is actually much harder --
it would need to be invented almost from scratch. And it is bound to be
flawed; national rules are the result of at least decades if not more of
trial and error.
> parminder
>
> On Tuesday 09 June 2015 07:31 PM, Michael Froomkin - U.Miami School of Law wrote:
> I don't know what it means to say that ICANN should be subject to "international
> jurisdiction and law". For the relevant issues, that sounds like a pretty empty set.
>
> As regards most of the sort of things one might expect to worry about - e.g. fidelity to
> articles of incorporation - international law is basically silent. And there is no
> relevant jurisdiction either. So I remain stuck in the position that there must be a
> state anchor whose courts are given the job. It does not of course need to be the US,
> although I would note that the US courts are by international standards not shy and
> actually fairly good at this sort of thing.
>
> I do think, however, that it should NOT be Switzerland, as its courts are historically
> over-deferential to international bodies - perhaps as part of state policy to be an
> attractive location for those high-spending international meetings.
>
> I'd be real happy with Canada, though.
>
> On Tue, 9 Jun 2015, parminder wrote:
>
>
>
> 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
> w
> i
> 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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--
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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