[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
parminder
parminder at itforchange.net
Wed Jun 10 05:16:25 EDT 2015
On Tuesday 09 June 2015 08:51 PM, Bertrand de La Chapelle wrote:
> 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. /
>
Sorry, it is
https://www.icrc.org/eng/war-and-law/international-criminal-jurisdiction/overview-international-criminal-jurisdiction.htm
>
> As for setting ICANN "under international law", unless I am mistaken
> (and I may very well overlook other ways), I see basically three ways:
A good attempt, and we can work on it, but not sure 3 below can be done
without writing the necessary international law for it, which is only
possible through an inter governmental treaty (1 below), like in France
or India or any other country, whatever be the constitution of a body,
it has to be anchored in an existing or new law written by the
parliament. And if, still pursing the national level analogy, a new kind
of governance body has to be developed, with monopoly governance
functions and powers, like ICANN is, whatever be its constitution, most
likely a new national law will be required for it, through the only
route that law can be developed.
It is important to note here that I am making a distinction between the
constitution of any body, its various processes, its accountability
means and so on, and the law needed to anchor it or support it, or evne
bring it into being. This distinction I see being lost in some of the
discussions here. The former can be multistakeholder or whatever, but
there are some given ways in which laws can be developed. Unless of
course there is some proposal here to propose new ways of developing law
(which is what I fight unclear or incongruent in Brazil's comments). I
will like to know what is your and other people's position on this matter.
> 1. the traditional one for the creation of international
> organizations, ie: an intergovernmental treaty
>
I cannot see how can a global governance body - with monopoly governance
functions of the importance that ICANN deals with, can be formed without
its anchoring in international law, which can only be written through an
intergovernmental treaty. And again, my direct question, is there a
proposal to take some new law making route here which is non
intergovernmental.
Even NTIA's condition (not that I consider my thinking bound by it) was
that they will not accept NTIA role to be replaced by an intergov
organisation solution..... I dont read it to means that whatever
organsation replaced NTIA role may not be formulated by international
law/ treaty which can only be arrived in an intergov way. In fact, as
we well know, unless we are keen to forget basic political sceince
lessons, only law alone can reign the power of law makers - as so many
laws are written with precise objective to constrain the powers of
governments and their various bodies. In the same way,
So, yes, I think there is no way other than to seek an inter-gov treaty
- which in my view should
(1) Sanctify the present way of constituting and working of ICANN and
its associated bodies (with minimal accountability related improvements
that get agreed to by everyone) . Such a treaty then limits what limit
what (all) governments can and cannot do in the area of global
Internet's basic techno-logical policies and management.
(2) Put an oversight body over ICANN with minimal well defined
functions, that is constituted in trans-national but non governmental
fashion, but consists to representatives from groups that are outside
the typical ICANN community and notionally can be considered as a
loosely representing a broad spectrum of social sectors that use ICANN
services (which of course everyone does). We can take reps from well
defined global constituencies like media association, science
associations, disability groups, women orgs, education professionals,
health professionals, ethnic groups and so on. Almost all these sectors
have global representative bodies which more or less are universally
accepted. Yes, there certainly be some arbitrariness in this, but such
an arrangement serves the basic requirement of (1) trans-national global
representative which is not intergov system, and (2) separation of
power and 'external accountability' vis a vic ICANN community. The main
function of the oversight body will be ensure compliance of ICANN
decisions with international law and its own bylaws and set of guiding
principles.
(3) Some kind of digital bench of the International court of justice or
some similar solution, to which the decisions of ICANN oversight body or
of ICANN itself can be taken, with due process, and under given
conditions. I dont agree to appeal process that are fashioned on
arbitration because while they serve the purpose of private law -
contractual isssues among various parties, all of which are relatively
empowered, they ill serve the purpose of pulbic law and justice, which
involves general public interest, those of the common person on the
street who can never successfully use IRP like processes, these are
simply not developed for such a purpose.
This proposal has been made by me quite a number of times on these lists
, and therefore there is nothing new in it . The comments of Roberto
Bissio, Adviser to CCWG , also contain some elements that are comparable
to the above proposal.
>
> 1. 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
>
I am unable to see how any government or rather state will give a
blanket immunity to an organisation, unless in pursuance of an
international agreement (which would also provide alternative
accountability and means of recourse). In any case, an organisation like
ICANN does need some kind of external check on its powers. However, if
you have clear proposal about what and how exactly what you say can be
done, and will work, please share, if possible with examples and/ or
analogies.
>
> 1. invent a new type of international organization, founded by a
> diversity of stakeholders (and not only governments), with
> appropriate independence and guarantees
>
I have proposed one above (as also often earlier). What exactly is your
proposal and how will it work. And do you envisae such an 'invention'
beign done and sustainef without supporting international law. I cant
see how it is possible. But perhaps you can explain.
>
> Are you advocating in favor of option 1)?
I have made my position clear above... It is 1 plus 3 in a way.
>
> Would you be amenable to option 2), if there are sufficient
> accountability mechanisms (including the enhanced IRP proposed by the
> CCWG)?
As mentioned above, I cant understand how 2 works. Please help by
explaining. Further I have mentioned my preference for public interest/
law institutions like some kind of international court over private law/
interest ones, and also given my reasons.
>
> Do you have suggestions regarding option 3)? We would all be happy to
> identify a new approach.
Yes, I shard it. Look forward to your and other views.
parminder
>
> 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 CHAPELLE
> Internet & Jurisdiction Project | Director
> email bdelachapelle at internetjurisdiction.net
> <mailto:bdelachapelle at internetjurisdiction.net>
> email bdelachapelle at gmail.com <mailto:bdelachapelle at gmail.com>
> twitter @IJurisdiction
> <https://twitter.com/IJurisdiction> | @bdelachapelle
> <https://twitter.com/bdelachapelle>
> mobile +33 (0)6 11 88 33 32
> www.internetjurisdiction.net <http://www.internetjurisdiction.net>
>
> A GLOBAL MULTI-STAKEHOLDER DIALOGUE PROCESS
>
>
> On Tue, Jun 9, 2015 at 4:48 PM, parminder <parminder at itforchange.net
> <mailto: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
>> <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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>> >> > ____________________________________________________________
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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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>> Recent publications:
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>>
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>> <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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