[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.<--
>> >
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