[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal
parminder
parminder at itforchange.net
Thu Jun 11 03:51:14 EDT 2015
On Thursday 11 June 2015 04:41 AM, Michael Froomkin - U.Miami School of
Law wrote:
> Just to head off a possible and no doubt unintentional misunderstanding:
>
> Non-US persons have recourse to US courts for many things, including
> contractual rights. Non-US persons located outside the US do not, in
> the main, have the right to make constitutional claims or defenses
> against the US government. But since ICANN, or New New Co., is not
> part of the US government, this is not relevant.
As you confirm below, one can make make claims or sue with respect
mostly to private law violations, like contractual deficiencies and the
such, but not on public law issues, and human rights issues. It is the
latter that is most important and the basis of my argument for
international jurisdiction for ICANN (other than the important
democratic principle that whether any jurisdiction is open to be
employed by anyone or not, a given jurisdiction has to be one which
includes all affected persons as democratic constituencies for
determining and building that jurisdiction, which all important
democratic aspect is strangely fully being side stepped in this
discussion. 'No governance/ jurisdiction without representation' which
is almost exactly the slogan on which the US fought for its independence
- it now needs to give a thought to those of others too...)
You asked for an example of a problematic scenario, let me use the one
which I have lately used in a few places. Excuse me to just cut paste
from my earlier posting to another list - to the Working Group on ICANN
Accountability, which btw took no note of it at all:
(Quote from an earlier posting to another elist begins)
One need not even provide a scenario, but let me try it - entirely
hypothetical at this stage, but extreme plausible. Sun
Pharmaceuticals is an Indian generic drugs company, one of the
world's largest, and providing drugs to most developing countries,
at a fraction of the prices that patented drug equivalents are
available for . There is a lot of literature on how Indian generic
drug industry has helped fight and stabilise the AIDS situaton in
Africa, and also with regard to other diseases all over the world.
Meanwhile, US pharma industry with the backing of the US government
has employed all possible means including those that are suspect
from an international law point of view to thwart and weaken the
Indian generic drugs industry for reasons which are obvious --
including getting seized in international waters and neutral
protected global shipping lanes supplies being shipped between two
developing countries in both of which the transaction is perfectly
legal (There is the famous case of supplies being exported from
India to Brazil being seized off Netherlands's coast on US gov's
behest.) ... Just to give an idea of how 'tense' things are in this
area.
Now, extending the hypothetical, lets say that Sun Pharma gets for
itself a gtld .Sunpharma (which btw if they ask me I'd advice them
not to bec of obvious dangers as clear from the following).. and
meanwhile extends its global business to online platforms, which is
kind of the normal direction that everything would go. .Sunpharma
then becomes or denotes the digital space where the company does
much of its global business, including management of company's
global affairs and so on.
Meanwhile, one or the other Intellectual property (IP) related flare
up occurs, as routinely does, and the US pharma industry cries foul
over certain global commerce activities of Sun Pharma.... We are,
say, in 2025 and everything is so digitalised and networked and so
on, that the Sunpharma online space has become basic to SunPharma's
international operations - it becomes the 'cloud' that underpins the
company's business (which it has a right to do - meaning to be able
to own and leverage a global online space under its own name and a
trade name name derived gtld). . US pharma approaches US courts and
seeks seizing of .Sunpharma as this asset is made available and
controlled from within the US jurisdiction; and the court agrees and
accordingly directs ICANN.... The global DNS system practically
unravels, at least its global legitimacy does...
We know that US courts have many times been approached to seize
domain names that are owned by outside groups and largely work
outside the US, and on many different kinds of grounds as well. This
is common knowledge and I will not try to begin providing examples.
And this right of such seizures or to otherwise being able to judge
the public interest nature of ICANN's work lies not only with the US
courts but also some executive agencies like the Office of Foreign
Assets Control, and I am sure there must be many more. I had earlier
asked this particular stress test to be applied but for no clear
reasons it never is. If we can cherry pick our stress tests, they
really are not stress tests, whatever other purpose they might serve.
There is simply no solution to the problem of letting US courts and
US's empowered executive agencies routinely judge and enforce their
will wrt the public interest impact of ICANN's global governance
activities than to incorporate ICANN under international law and get
corresponding immunity from US domestic law. I repeat, there is
simply no other way. Period.
Therefore if we indeed are worried about the role and authority of
US courts vis a vis ICANN's global governance activities, lets be
consistent. I have held back commenting here, because I see that the
two key framing issues of accountability - accountability to which
community/ public, and the issue of jurisdiction - have simply been
sidestepped, and in default there is no meaning to thrashing out
minute details. "
(quote ends)
parminder
>
> If a corporation is located in a US state, then it can be sued there
> by **anyone*** from ***anywhere*** so long as they are in fact
> alleging facts showing they were wronged by it. In other words, the
> issue is what (mainly private law) rights one might have to assert,
> not whether the court will hear you due to your citizenship or
> domicile or even (if represented by counsel) location.
>
>
> On Wed, 10 Jun 2015, Seth Johnson wrote:
>
>> On Wed, Jun 10, 2015 at 2:51 PM, Mawaki Chango <kichango at gmail.com>
>> wrote:
>>> 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.
>>
>>
>> It is. But no, you would not have recourse to US courts. The problem
>> for the international arena is that nobody has that "trump card"
>> recourse that keeps governments in check *other than* those who have a
>> claim that their own government is doing or allowing things to happen
>> that violate their own fundamental rights as a citizen. The kind of
>> rights you get internationally are really almost what we call
>> statutory rights -- the problem being that the "legislature" can
>> always rewrite those kinds of rights. Or, since in fact going and
>> revising a treaty provision regarding rights poses some political
>> difficulty, what you'll see more often is that the rights expressed in
>> treaties have no more weight against things like "national interests"
>> or "national security" or the "war on" x, y, and z -- than a
>> "balancing standard." Governments can well do whatever they say is
>> necessary (like vacuum up all communications for surveillance, or for,
>> hey, regular spying) for their national interests and they essentially
>> just "bear in mind" whatever rights are expressed in treaties. And no
>> judge in an ostensible international tribunal can really simply cancel
>> a treaty the way they can an unconstitutional law in a national
>> context (without a clear founding act prior to the government, where
>> the people(s) claim their priority and authorize government(s) to
>> proceed only under certain limits). Treaties are agreements among
>> governments, so what the governments "meant" is what you have to
>> deliberate over in interpreting the treaties -- not over whether the
>> people have rights regardless of the governments' intention in the
>> treaty. A judge would at best weigh treaty elements and try to
>> articulate how to settle all parts without saying any part is
>> "unconstitutional." The problem is how to get the closest you can to
>> that kind of a "trump card" standing for fundamental rights.
>>
>> An ostensible "constitution" among governments (like the ITU's) has
>> the same problem. In general, the way the real claim of priority of
>> the people and their rights happens is when the people self-evidently
>> act to fill in the gap when a government is rendered illegitimate (or
>> overthrown): acting independent of the pre-established government to
>> select delegates to their own constitutional convention, draft a
>> constitution, and then ratify it -- they thereby set a definitive
>> historical register of the people setting limits that the government
>> must thenceforth operate within to be legitimate. This is called the
>> "constituent power." Historians point at Massachusetts as the first
>> US colony/state to exercise the consttuent power that way -- when the
>> towns rejected the state constitution the state legislature had
>> written for them and insisted on having their own constitutional
>> process. It was done by similar principles for the US federal
>> constitution. That's how you get a fundamental right "trump card."
>>
>> If you have that, and it's exercised a few times well or for a while,
>> then you have a situation where goverments are in check -- they don't
>> overreach too obviously, or they test the boundaries but they get
>> trumped by a judiciary that's rooted that way.
>>
>> You posed the question of equal rights before the law, in the
>> international context. I certainly do not advocate a global
>> revolution where all the people(s) seize a moment to stop their
>> governments and tell them how they may all proceed.
>>
>> What I have tended to suggest is approaches that can be interim
>> measures that tend towards the principles that we want to have in
>> play, but which we can't yet quite have in play.
>>
>> One approach that seems like a way towards that kind of conception
>> might be: Imagine a bicameral "House of Rights" or more narrowly an
>> "International Internet Communications Rights Forum." It doesn't need
>> to say "Rights," though that's the point, so maybe call it an
>> "Internet Stewards House." This is modeled like a legislature, with a
>> house to represent countries equally, and another house to represent
>> populations proportionally -- except it's not empowered to write law
>> (or treaties), but rather to play the role of voting to *veto* acts of
>> other (or some one or few other) intergovernmental bodies that
>> actually do start enacting binding "legislation." You might be able
>> to get freedom-loving countries to endorse constructing something like
>> that, and while it's not as solid as court rulings that keep all
>> lawlike activities in check more definitively, it would be a solid
>> register of the priority of rights.
>>
>> There are a lot of holes in that, but I think it conveys something of
>> the kind of concerns and how they might be approached that we should
>> really have in mind rather than blindly handing things off to the
>> international arena (which is really *always* "intergovernmental" --
>> governments are the entities that act there).
>>
>> So, that's a sort of answer, stab at describing things properly and
>> with some sort of practical conception. I don't press specific
>> solutions though, just describe notions that I think can give people a
>> better understanding of the real nature of the difficulties and
>> problems involved.
>>
>> Ponder that; you'll think of plenty of problems with it. But the
>> important thing is this is a far more real characterization of the
>> situation. And I describe an idea like this solely to set a proper
>> stage for talking about things with a better sense of what's going on.
>> Take it as a brainstorm. But also take it as a reality check and a
>> call and challenge to try to define and understand the situation
>> properly and well.
>>
>> (The above line of exposition talks mostly about governmental-related
>> issues. The issues brought by the corporate form are a whole other
>> area that also needs fuller appreciation. And really, we most want
>> not to be so governmental [even those of us stressing the validity of
>> the role of government]; we want to just build our Internet and let
>> that be mostly a discussion of how to solve problems in a technical
>> way and one where our rights aren't on the line.)
>>
>> See what you think of that.
>>
>>
>> Seth
>>
>>> 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.<--
>>>>>> >> >
>>>>>> >> ____________________________________________________________
>>>>>> >> >
>>>>>> >> > 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
>>>>>> >>
>>>>>> >>
>>>>>> >>
>>>>>> >>
>>>>>> >
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>> ____________________________________________________________
>>>>>> 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
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>>>>>> http://www.igcaucus.org/
>>>>>>
>>>>>> Translate this email: http://translate.google.com/translate_t
>>>>>>
>>>>>>
>>>>>>
>>>>>
>>>>> --
>>>>> 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:
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