On Thursday 11 June 2015 07:42 PM, Michael Froomkin - U.Miami School of
Law wrote:
> Can you give me an example of what you consider a good model for an
> 'international jurisdiction' application -- ideally one where someone
> has succeeded with a human-rights based challenge?
>
> I would also question the claim that no national jurisdiction could be
> asked (or trusted) to undertake a stewardship role on behalf of the
> international community. Saves reinventing the legal wheel.
>
> I just don't have much faith in the international tribunal option
> because 1) it would take years to set up; 2) the lack of relevant
> international law would create massive uncertainty; 3) cases would be
> even more costly than those in the US or the like.
>
> As regards your IP example below, I would only note that there are
> meaningful differences between the IP laws of various states, and that
> WIPO's view - which likely would dominate in an international forum -
> is far more friendly to IP rights and less open to HR claims than the
> US courts have shown themselves to be. Indeed, I would have thought
> that WIPO's IP maximalist views were in themselves proof that the
> international route was deeply suspect.
I will respond to the earlier paras of your email in a subsequent email.
First on your response to the 'problem scenario' I presented.
You of course know that US's IP (intellectual property) position is WIPO
++, something that US itself clearly acknowledges and which is one of
the most problematic basis of all the plurilateral free trade agreements
that US is currently focussing on, and which are facing the brunt of
much global civil society criticism.
Further, the US courts have been rather virulent with regard to
furthering this maximalist IP agenda, including in an extra-territorial
manners, and including ordering various kinds of seizure of properties,
physical or otherwise. And this includes domain names. These facts I
understand are too well know for them to require elaboration or
instantiation.
If ICANN is subject to international law/ jurisdiction and international
oversight, it will remove the jurisdiction of US courts and other
various kinds of US executive and legislative authorities which have the
world's most IP maximalist agenda, and also a political will for its
ham-handed enforcement. Under international jurisdiction and oversight,
ICANN would be required to only take such IP related steps that flow
from WIPO and other international treaties which have been agreed to by
all nations, and which currently are rather softer than US's IP standards.
I gave the example of the pharma sector, but soon such one-sided IP
regime and its blunt enforcement, being developed by the US, will be
found as problematic in the food sector, for agri inputs like seeds,
data based informational products and services (which themselves
increasingly underpin every sector), and so on... And as every sector
and business becomes digital in its core processes and components,
control over the root of the Internet, and its numbers, naming and
routing protocols and processes, becomes another very important means
to rule the world. We may be playing with fire here.
parminder
>
> On Thu, 11 Jun 2015, parminder wrote:
>
>>
>>
>> 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.<--
>>
>> >> >
>> >>
>>
>> ____________________________________________________________
>>
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>> ____________________________________________________________
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>> 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,
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