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

parminder parminder at itforchange.net
Wed Jun 10 05:26:38 EDT 2015



On Tuesday 09 June 2015 09:09 PM, Michael Froomkin - U.Miami School of
Law wrote:
> 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 are of course problems and issues everywhere, but it can hardly be
said that UN and/or treaty bodies work without meaningful
accountability. Further, any new international treaty/ law establishing
a new body - an really international ICANN for instance - can write all
the accountability method it or we want to have written in it.
>
> 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?

This hits a fundamental issue - I see ICANN, in its ideal form, as a
governance body, since it does governance functions, and not as a
private corporation. So we need a new international treaty sanctifying
ICANN as a global governance body - with its basic forms largely
unchanged, with new accountability means (including judicial
accountability) and not ways to be able incorporate a private kind of an
entity outside national laws, which is admittedly both very difficult,
and rather undesirable.

parminder

>
>>
>> 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.<--
>>                         >
>> ____________________________________________________________
>>                         >
>>                         > You received this message as a subscriber
>> on the list:
>>                         >
>>                         >      governance at lists.igcaucus.org
>>                         >
>>                         > To be removed from the list, visit:
>>                         >
>>                         >      http://www.igcaucus.org/unsubscribing
>>                         >
>>                         >
>>                         >
>>                         > For all other list information and
>> functions, see:
>>                         >
>>                         >      http://lists.igcaucus.org/info/governance
>>                         >
>>                         > To edit your profile and to find the IGC's
>> charter, see:
>>                         >
>>                         >      http://www.igcaucus.org/
>>                         >
>>                         >
>>                         >
>>                         > Translate this email:
>> http://translate.google.com/translate_t
>>                         >
>>                         >                                            
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>                  
>>                        
>>                                                
>>                                                                      
>>    
>>                         >
>> ____________________________________________________________
>>                         > You received this message as a subscriber
>> on the list:
>>                         >      governance at lists.igcaucus.org
>>                         > To be removed from the list, visit:
>>                         >      http://www.igcaucus.org/unsubscribing
>>                         >
>>                         > For all other list information and
>> functions, see:
>>                         >      http://lists.igcaucus.org/info/governance
>>                         > To edit your profile and to find the IGC's
>> charter, see:
>>                         >      http://www.igcaucus.org/
>>                         >
>>                         > Translate this email:
>> http://translate.google.com/translate_t
>>                         >
>>
>>
>>
>>
>>
>>
>>             ____________________________________________________________
>>             You received this message as a subscriber on the list:
>>                  governance at lists.igcaucus.org
>>             To be removed from the list, visit:
>>                  http://www.igcaucus.org/unsubscribing
>>
>>             For all other list information and functions, see:
>>                  http://lists.igcaucus.org/info/governance
>>             To edit your profile and to find the IGC's charter, see:
>>                  http://www.igcaucus.org/
>>
>>             Translate this email:
>> http://translate.google.com/translate_t
>>
>>
>>             ____________________________________________________________
>>             You received this message as a subscriber on the list:
>>                  governance at lists.igcaucus.org
>>             To be removed from the list, visit:
>>                  http://www.igcaucus.org/unsubscribing
>>
>>             For all other list information and functions, see:
>>                  http://lists.igcaucus.org/info/governance
>>             To edit your profile and to find the IGC's charter, see:
>>                  http://www.igcaucus.org/
>>
>>             Translate this email:
>> http://translate.google.com/translate_t
>>
>>
>>
>>
>>
>>
>>
>> ____________________________________________________________
>> You received this message as a subscriber on the list:
>>      governance at lists.igcaucus.org
>> To be removed from the list, visit:
>>      http://www.igcaucus.org/unsubscribing
>>
>> For all other list information and functions, see:
>>      http://lists.igcaucus.org/info/governance
>> To edit your profile and to find the IGC's charter, see:
>>      http://www.igcaucus.org/
>>
>> Translate this email: http://translate.google.com/translate_t
>>
>>
>>
>>
>



-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.igcaucus.org
To be removed from the list, visit:
     http://www.igcaucus.org/unsubscribing

For all other list information and functions, see:
     http://lists.igcaucus.org/info/governance
To edit your profile and to find the IGC's charter, see:
     http://www.igcaucus.org/

Translate this email: http://translate.google.com/translate_t


More information about the Governance mailing list