[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Thomas Lowenhaupt
toml at communisphere.com
Wed Jun 10 10:09:53 EDT 2015
Chris,
Are you suggesting that the entity reside in a nation that would give it
a negotiated form of diplomatic immunity?
Tom Lowenhaupt
On 6/10/2015 6:43 AM, Chris Prince Udochukwu Njoku wrote:
>
> Parminder is emphasizing a true point. An organization which
> represents the interests of many nations, though located in one nation
> (as it must be) must not be subjected to laws that ought to be (and
> are) for national organizations. This should be the definition of
> international jurisdiction here. If the host nation's laws don't
> actually accommodate the multinational stakeholding nature of the
> organization, it's a ripe clue to the need for relocation to a place
> that is more friendly to the organization's operations.
>
> On Jun 10, 2015 11:27 AM, "parminder" <parminder at itforchange.net
> <mailto:parminder at itforchange.net>> wrote:
>
>
>
> 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
> <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
> >> 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 <http://jotwell.com>
> >> > Program Chair, We Robot 2016 | +1 (305)
> >> 284-4285 |
> >> 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.<--
> >> >
> >> ____________________________________________________________
> >> >
> >> > You received this message as a subscriber
> >> on the list:
> >> >
> >> > governance at lists.igcaucus.org
> <mailto: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
> <mailto: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
> <mailto: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
> <mailto: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
> <mailto: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 <mailto: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 --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/governance/attachments/20150610/67162353/attachment.htm>
-------------- 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