[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal

Mawaki Chango kichango at gmail.com
Mon Jun 15 14:21:54 EDT 2015 

On Jun 15, 2015 4:32 PM, "Barry Shein" <bzs at world.std.com> wrote:
>
>
> Yes, Iran was a defendant in the particular case I mentioned, but they
> weren't blocked in any way from participating in their defense which
> seemed to be the basis for your speculation.

Not really. It seems obvious to me that in cases where it's the US party
that summons the foreign party to respond in a US court then we'd have the
answer before the question is even raised.

At the moment the most
> recent court decision I'm aware of in this particular case has ruled
> for Iran (actually ICANN acting on behalf of the assets in question)
> and blocked transfer or garnishing of their ccTLD revenue stream. I'm
> sure we'll hear more, I don't believe it's over yet.
>

Good to know that.

> But there's also "Nat'l Petrochemical of Iran [NPC] vs M/T Scott
> Sheaf" (2d Cir. 1988).
>
> NPC is wholly owned by Iran.
>
> The specific question was whether the plaintiff, NPC, was barred
> access from US courts due to the lack of formal recognition by the US
> of the govt of Iran.

Exactly. And particularly as plaintiff, the answer to which is confirmed by
the following line of yours.

>
> The court ruled in favor of plaintiff NPC (Iran): Not barred.
>
> I'm not sure where else we can go with testing a speculation that
> Iran's (or others') diplomatic status with the US might bar them from
> access to US courts. Do you have examples to the contrary?

It wasn't really a speculation, but a question or, if you will, a
hypothetical question. The reason is, I've noticed people are allergic to
abstract argumentation in these settings and we are often asked: what
problem are you trying to solved? Keeping in mind if it ain't broke, don't
fix it. So I came up with "problem scenari-questions," genuinely looking
for answers. A solid assumption one could make here, I would think, is that
my main premise might be as follows: the more of these scenari-questions
find satisfying answers (meaning we find out evidence that the problem may
not actually occur or that if it does occur there are institutional
arrangements in place that allow addressing it in a fair and just manner),
the more stakeholders still on the fence will find the status quo on the
question of jurisdiction acceptable. But of course I may be wrong on that
premise.

In any event, by putting them forward, I certainly wasn't claiming they had
no answer, or even more, that the answer to those scenari-questions is
negative.

>
>
http://www.lawschoolcasebriefs.net/2012/04/national-petrochemical-co-of-iran-v-mt.html
>
> or
>
>   http://tinyurl.com/pueamg9
>
> I suppose the broader question is whether there is anything peculiar
> about the US' behavior in these matters,

Indeed, although I'd say in general. I think if you search you'll find the
word "hegemon" previously used in this thread, and that wasn't by me.

or would it be the same in
> any likely venue? The US is not the only country in the world which
> might have blacklists.

Then the question might be whose blacklists tend to inflate the most,
including against the opinion of the majority of the rest of the world? I
must say I only have a perception about that, and haven't gathered the
evidence/ historical record to back that so it's an open question. One
thing for sure, the US has a unique position in the world and as such, it
may have a unique set of interests on top of all the interests it shares
with the rest of the "free world," (it wasn't that long ago that allied
were spied on by a USG agency on grounds that precisely relate to issue
areas where they were allied), or also stated otherwise it has a unique
capacity to bring its might in support to its will, enabling it to make and
enforce extra national unilateral decisions more than any other. Or do you
know of many countries that can compete?

Whatever the case, whoever may be concerned needs to appreciate that the
above is the basis for people's concern when they raise the kind of
questions we've been discussing here, not that they are anti American in
their guts (which I'm certainly not saying is your opinion but some people
do feel that way.)

Mawaki

>
> Or does there exist some jurisdictional venue (supranational) where
> such issues don't exist?
>
>    -b
>
> From: Mawaki Chango <kichango at gmail.com>
> >Not sure why you seem to think that might be so. In the case being
reported
> >here, the plaintiffs are American ctitizens suing the Islamic Republic of
> >Iran (the defendant), on the basis of its support to terrorist groups in
> >Gaza Strip (as per the court proceedings.) There is in place, in the US,
an
> >exception statute regarding the normal foreign sovereigns' immunity in
> >state and federal courts. That exception statute particularly applies
when
> >the foreign sovereign has been entered by USG into a list of states
> >involved in terrorism sponsoring activities (if my understanding is
> >correct), allowing the court to proceed with a case where any such
foreign
> >sovereign is the defendant.
> >
> >Now, are you suggesting that we may conclude from there that the Islamic
> >Republic of Iran (or any other foreign state that is on a USG's blacklist
> >or under its embargo) might be able to bring a case in American courts,
at
> >both state and federal levels, in which they would be the plaintiff? Or
am
> >I missing something?
> >
> >/Brought to you by Mawaki's droid agent
> >On Jun 14, 2015 5:57 PM, "Barry Shein" <bzs at world.std.com> wrote:
> >
> >>
> >> From: Mawaki Chango <kichango at gmail.com>
> >> >4) there remains another concern (which could have made it to my
scenario
> >> >#2). What happens when USG decides to put a country on some black
list for
> >> >some peculiar reason of its own which most of the nations-states
disgree
> >> >with or do not find necessary (and which might not even have anything
to
> >> do
> >> >with the Internet)? Wouldn't that country be shut off Californian
courts
> >> >for any legal recourse in Internet matters? If so, is that an
acceptable
> >> >state of affairs? What would be the remedy?
> >>
> >> Would the recent lawsuits and judgements and continued actions (e.g.,
> >> Haim et al v Islamic Republic of Iran, US Distr Court, DC) in US
> >> courts serve as a counter-example to that concern?
> >>
> >>
> >>
https://scholar.google.com/scholar_case?case=1494831416114150179&q=Haim+v.+Islamic+Republic+of+Iran&hl=en&as_sdt=20006&as_vis=1
> >>
> >> or
> >>
> >>   http://tinyurl.com/o3thbvb
> >>
> >> --
> >>         -Barry Shein
> >>
> >> The World              | bzs at TheWorld.com           |
> >> http://www.TheWorld.com
> >> Purveyors to the Trade | Voice: 800-THE-WRLD        | Dial-Up: US, PR,
> >> Canada
> >> Software Tool & Die    | Public Access Internet     | SINCE 1989
 *oo*
> >>
> ><p dir=3D"ltr">Not sure why you seem to think that might be so. In the
case=
> > being reported here, the plaintiffs are American ctitizens suing the
Islam=
> >ic Republic of Iran (the defendant), on the basis of its support to
terrori=
> >st groups in Gaza Strip (as per the court proceedings.) There is in
place, =
> >in the US, an exception statute regarding the normal foreign
sovereigns&#39=
> >; immunity in state and federal courts. That exception statute
particularly=
> > applies when the foreign sovereign has been entered by USG into a list
of =
> >states involved in terrorism sponsoring activities (if my understanding
is =
> >correct), allowing the court to proceed with a case where any such
foreign =
> >sovereign is the defendant.</p>
> ><p dir=3D"ltr">Now, are you suggesting that we may conclude from there
that=
> > the Islamic Republic of Iran (or any other foreign state that is on a
USG&=
> >#39;s blacklist or under its embargo) might be able to bring a case in
Amer=
> >ican courts, at both state and federal levels, in which they would be
the p=
> >laintiff? Or am I missing something? </p>
> ><p dir=3D"ltr">/Brought to you by Mawaki's droid agent</p>
> ><div class=3D"gmail_quote">On Jun 14, 2015 5:57 PM, "Barry
Shein"=
> > <<a href=3D"mailto:bzs at world.std.com">bzs at world.std.com</a>>
wrote:<=
> >br type=3D"attribution"><blockquote class=3D"gmail_quote"
style=3D"margin:0=
> > 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><br>
> >From: Mawaki Chango <<a href=3D"mailto:kichango at gmail.com
">kichango at gmai=
> >l.com</a>><br>
> >>4) there remains another concern (which could have made it to my
scenar=
> >io<br>
> >>#2). What happens when USG decides to put a country on some black
list =
> >for<br>
> >>some peculiar reason of its own which most of the nations-states
disgre=
> >e<br>
> >>with or do not find necessary (and which might not even have
anything t=
> >o do<br>
> >>with the Internet)? Wouldn't that country be shut off
Californian c=
> >ourts<br>
> >>for any legal recourse in Internet matters? If so, is that an
acceptabl=
> >e<br>
> >>state of affairs? What would be the remedy?<br>
> ><br>
> >Would the recent lawsuits and judgements and continued actions (e.g.,<br>
> >Haim et al v Islamic Republic of Iran, US Distr Court, DC) in US<br>
> >courts serve as a counter-example to that concern?<br>
> ><br>
> >=C2=A0 =C2=A0<a href=3D"
https://scholar.google.com/scholar_case?case=3D1494=
>
>831416114150179&q=3DHaim+v.+Islamic+Republic+of+Iran&hl=3Den&as=
> >_sdt=3D20006&as_vis=3D1" rel=3D"noreferrer" target=3D"_blank">
https://s=
> >
cholar.google.com/scholar_case?case=3D1494831416114150179&q=3DHaim+v.+I=
>
>slamic+Republic+of+Iran&hl=3Den&as_sdt=3D20006&as_vis=3D1</a><b=
> >r>
> ><br>
> >or<br>
> ><br>
> >=C2=A0 <a href=3D"http://tinyurl.com/o3thbvb" rel=3D"noreferrer"
target=3D"=
> >_blank">http://tinyurl.com/o3thbvb</a><br>
> ><br>
> >--<br>
> >=C2=A0 =C2=A0 =C2=A0 =C2=A0 -Barry Shein<br>
> ><br>
> >The World=C2=A0 =C2=A0 =C2=A0 =C2=A0 =C2=A0 =C2=A0 =C2=A0 |
bzs at TheWorld.co=
> >m=C2=A0 =C2=A0 =C2=A0 =C2=A0 =C2=A0 =C2=A0| <a href=3D"
http://www.TheWorld.=
> >com" rel=3D"noreferrer" target=3D"_blank">http://www.TheWorld.com</a><br>
> >Purveyors to the Trade | Voice: 800-THE-WRLD=C2=A0 =C2=A0 =C2=A0 =C2=A0
| D=
> >ial-Up: US, PR, Canada<br>
> >Software Tool & Die=C2=A0 =C2=A0 | Public Access Internet=C2=A0
=C2=A0 =
> =C2=A0| SINCE 1989=C2=A0 =C2=A0 =C2=A0*oo*<br>
> </blockquote></div>
>
> --
>         -Barry Shein
>
> The World              | bzs at TheWorld.com           |
http://www.TheWorld.com
> Purveyors to the Trade | Voice: 800-THE-WRLD        | Dial-Up: US, PR,
Canada
> Software Tool & Die    | Public Access Internet     | SINCE 1989     *oo*
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