[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
Mawaki Chango
kichango at gmail.com
Wed Jun 10 14:51:25 EDT 2015
Simple and maybe trivial question, again (since my previous one about
delegation hasn't found a taker.)
Scenario 1*: I am a citizen of Togo, quite a small country sitting on the
belly of Africa to the west (you may check our macro economic indicators in
the CIA Facebook or from the World Bank online sources.) I am a domain name
registrant. In year 2018 ICANN makes a decision, later upheld by the
conflict resolution mechanism in place, but which I think violates my
fundamental rights as I understand them by any international standards. I
am even pretty convinced that I might win the case in a US court based on
the documentation available /jurisprudence in that country. Problem is, I
have no access to the institutional resources that would allow me to use
the US judicial system as a plaintiff, much less the financial resources it
would take to get a lawyer to represent my interests.
Is that -- the need for everybody to be equal before the law, in practice,
and have their rights equally secured, -- in your view, a problem worthy of
our attention? If so how can we address it.
Thanks
(*) I only have one scenario for now but I'm numbering #1 just in case
others come up later in the discussion.
/Brought to you by Mawaki's droid agent
On Jun 10, 2015 3:57 PM, "Seth Johnson" <seth.p.johnson at gmail.com> wrote:
> I believe the most important focus is on the question of how to
> install effective fundamental liberties limits in the context of an
> international political forum. That's how you can hope to maintain
> the type of stewardship context we want associated with a medium of
> communication. The presence of recourse of that sort -- related to
> being based in a national context -- is one of the main reasons why
> ICANN has not gone further off the rails. Same as for government in
> general in such a national context: we don't get the government
> meddling specifically because the relationship to the national context
> (via the bare presence of NTIA) means the people (at least of the US)
> have recourse against it if it does.
>
> Keep in mind that one of the chief reasons why Obama (and his
> predecessor) have gone off the rails with surveillance and other
> fundamental rights violations is because they have the notion that the
> international arena provides means to act that way without the
> recourse we have against it domestically. There's still the problem
> of laundering the surveillance by having private corporations (whether
> telco or app) do it on the government's behalf. But we see an effort
> at long last to try to "legitimize" what they're doing that way at
> least (more apparent effort to not violate citizens in the domestic
> sphere), because we finally got standing in the courts, and
> documentation that was taken seriously via Snowden. Still just
> domestic, so that doesn't answer general concerns, but this should
> highlight the nature of the problem. You don't actually have
> fundamental rights in the international arena, no matter how many
> human rights treaties you pass. That's not what secures rights
> against acts of governments.
>
> Note that this is stuff the UN has been utterly clueless about for
> years and years and years, along with many followers-on. And I think
> in general the parties who have been acting in the international arena
> like it that way. We, the people(s), are really the ones to bring it
> into the discourse in a real way, now that we are here in proceedings
> that deign to appear to engage us substantively in international
> policy.
>
>
> Seth
>
> On Wed, Jun 10, 2015 at 10:36 AM, Michael Froomkin - U.Miami School of
> Law <froomkin at law.miami.edu> wrote:
> > On Wed, 10 Jun 2015, 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
> >
> >
> > It is, I think, possible to act as a trustee of international interests
> > while still having accountability rooted in national law. It may not be
> > possible to accommodate the desires of governments to, in effect, serve
> > directly on the governing body given the view of e.g. the Brazilian
> > government that this is unacceptable subordination to another state, but
> > some may see that as a feature rather than a bug.
> >
> >
> >> 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.
> >>
> >
> > The above contains a term that (to a lawyer) has multiple possible
> meanings.
> > The traditional way to " accommodate the multinational ... nature" of an
> > organization is to incorporate it in Switzerland, and have no effective
> > supervision. FIFA. IOC. No thanks.
> >
> > So I would ask, what is the threat model here? What is a (mildly
> realistic)
> > example of a scenario in which one fears the entity will do something
> > legitimate and a national court (of the US, Canada, the nation of your
> > choice) would have an appreciable chance of blocking it? I would note,
> for
> > example, that the only time I can think of that a US court overruled
> ICANN
> > was when it froze out one of its own directors because the staff
> disagreed
> > with his views. That violated California law empowering directors not to
> > mention any sense of natural justice. The result was not only just, it
> was
> > necessary. And it is Exhibit A as to why we cannot simply trust in
> ICANN,
> > or New New Co's, good faith.
> >
> > In other words, I submit that national court supervision in an
> appropriate
> > and democratic jurisdiction is far, far more likely to produce good
> outcomes
> > than bad ones, while the removal of this valuable check is almost
> certain to
> > lead to difficulties. What is more, those difficulties will not be
> > prevented by having the body be "international" for any currently known
> > meaning of the term.
> >
> > Contrary to other messages in this thread, I do not believe that there is
> > much in the way of effective monitoring of many multi-national treaty
> bodies
> > other than by action of the member states. No one else has much real
> > leverage over WIPO, GATT, you name it. NGOs have some moral and
> > intellectual suasion, but some of their clout also comes from the fact
> that
> > it influences or might influence the members.
> >
> > I prefer to attempt to engineer a much surer means of dealing with major
> and
> > substantially foreseeable problems.
> >
> >
> >> On Jun 10, 2015 11:27 AM, "parminder" <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> 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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> >> >> >
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> >> >>
> >> >>
> >> >> >
> >> >> ____________________________________________________________
> >> >> > You received this message as a
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> >> ____________________________________________________________
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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.<--
> >
> > ____________________________________________________________
> >
> > You received this message as a subscriber on the list:
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You received this message as a subscriber on the list:
governance at lists.igcaucus.org
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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/
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