[ALAC] Fwd: GAC Communique Brussels Intersessional

Hong Xue hongxueipr at gmail.com
Sat Mar 5 02:48:57 UTC 2011


The GAC communiqué from Brussels is an eye-opening document.

ICANN is not an IGO or an international treaty organization and has no
Member States. What it has or claims to have is the stakeholder
groups.

 It is interesting that the sovereign countries in GAC believes that
they should have veto right or more right than any other Stakeholder
groups. Can they provide any legal basis in the international law? A
number of countries' joint declaration could not constitute such legal
basis and is only bound to all the countries involved. A country's
sovereignty cannot go beyond the boundary to govern ICANN. Neither can
a group country "pool" their sovereignty to reach the same goal. But
if ICANN is viewed as a civil subject registered in California, one
country where ICANN resides does have the sovereignty against it.

The old or classic international law theory can hardly explain the
legitimacy (if any) of ICANN or ICANN-likes. We need new
"international" or global law to fit the new global NGOs like ICANN.

Hong

> *
> *
> *- Inequality between the GAC and other ACs or SOs is a reality, whether or
> not we consider this is justified. Sovereign states can apply national law,
> and are (usually) bound by international law. ICANN's other stakeholders
> have a vague moral right to represent segments of the community, the only
> reference being the ICANN By-laws, which have no international standing, and
> are legally binding only in the USA.*
> *
> *
> *- This discrepancy is further accentuated by the AoC. We cannot escape this
> fact. So the question is: apart from the GAC, can other stakeholders achieve
> a better balance, and how can they do that? I think there's only one way,
> which is to have cross-constituency agreement on major issues, which so far
> has proven difficult.*
> *
> *
> *- One area where the ALAC could take a leadership role and strive to gain
> other stakeholders to its cause, is the general area of "the public
> interest". Example: in the DAG, some elements may be defensible from an
> industry point of view, but possibly detrimental to the public interest
> (privacy, consumer protection, human and civic rights). If we detect a
> dividing line between, say, the GAC and other stakeholders, for instance
> regarding fundamental human rights (e.g. religious persuasions, atheism or
> other philosophical positions, sexual preference, etc), then we should
> strive to define a broad platform and present it to other stakeholders,
> seeking their support. Ideally, this could then become a "ICANN minus GAC"
> position, which would carry more weight than some ALAC-only statement.*
> *
> *
> *Regards,*
> *Jean-Jacques.*
>
> On 4 March 2011 22:48, Evan Leibovitch <evan at telly.org> wrote:
>
>> The two components of the message that stuck out to me:
>>
>> - The emphasis for more *bilateral* discussions. There are more
>> stakeholders
>> than just GAC and the ICANN Board. I welcome the opportunity to more deeply
>> involve the GAC in ICANN processes, but there must be more than lip-service
>> paid to the multi-stakeholder model going forward. As we saw from its
>> near-obsession with trademark issues, in some ways even the GAC can be
>> gamed.
>>
>> - "*The GAC is committed to take whatever time is required to achieving
>> these essential public policy objectives** -- Saved for the second-last
>> sentence of the statement, this rightfully holds ICANN accountable for its
>> lack of sufficiently inclusive community engagement in early gTLD policy
>> development, and the deliberate shunning of community advice at many
>> stages.
>> It should send a shiver down the spine of most GNSO members, to whom the
>> word "delay" is now officially an obscenity.
>>
>> --
>> Evan Leibovitch, Toronto Canada
>> Em: evan at telly dot org
>> Sk: evanleibovitch
>> Tw: el56
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>



-- 
Dr. Hong Xue
Professor of Law
Director of Institute for the Internet Policy & Law (IIPL)
Beijing Normal University
http://www.iipl.org.cn/
19 Xin Jie Kou Wai Street
Beijing 100875 China



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