On Friday 12 June 2015 11:14 PM, Michael Froomkin - U.Miami School of
Law wrote:
>
> I don't agree with your characterization of the US courts. In the
> trademark arena, the one most relevant to ICANN, they have been wildly
> more supportive of speech rights and individual rights than WIPO.
>
> In copyright law, which I know less well, my sense is that the courts
> are divided, but the real parameters have been set by the legislature.
How does it matter where from the evil arises as long as it delivers.
You will appreciate that as a non US person I have little interest in
the internal nuances of the US scene, and only need to know that the US
has an IP maximalist policy, which its various agencies, including the
courts, have shown great eagerness to enforce strongly, including in an
extraterritorial manner.... And that the US fully stands out in this
regard, with its policies and behaviour being certainly much worse than
any other country, and also much worse than what is contained in
international treaties including those of WIPO.
>
> The US indeed has a maximalist copyright and IP agenda but that is
> firmly situated in the Executive branch (US PTO and the White House)
> far far more than the courts.
Again, in a global discussion such an internal US nuance counts for
little. How does it matter who wields the axe as long at it cuts the
neck.. The fact remains that keeping the global infrastructure of naming
and numbering, and technical protocols, under US's unilateral control
and jurisdiction is very dangerous in that it gives further strong
leverage to various kinds of global hegemonies of the US, including, as
in this case, means of possible coercion to enforce its policies and
law on the whole world, which it in any case tries its best to do. This
of course is completely unacceptable to the overwhelming majority of the
world's population, howsoever the US and ICANN may try to stamp this
continued misappropriation with 'community's assent' through the heavily
rigged, almost fake, process of oversight transition that is currently
underway.
(I do acknowledge that in your earlier email you had referred to this
problem of US hegemony and preferred that ICANN gets incorporated in
another country's jurisdiction. I however still believe that
international law is both the best and the more plausible option - even
if there is a considerable amount of evolutionary, and innovative, work
to be done for this purpose. )
parminder
>
> On Fri, 12 Jun 2015, parminder wrote:
>
>>
>>
>> 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.<--
>>
>>
>> >> >
>> >>
>>
>> ____________________________________________________________
>>
>>
>> >> >
>>
>>
>> >> >
>> You received this
>> message as
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>> >> >
>> To be removed from
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>> To edit your profile
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>> >>
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>>
>> ____________________________________________________________
>>
>>
>> >> >
>> You received this
>> message as
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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.<--
>>
>>
>> ____________________________________________________________
>>
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____________________________________________________________
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