[At-Large] Is ICANN's oversight really moving away from the US government?

[parminder]

On Saturday 26 March 2016 09:43 PM, Roberto Gaetano wrote:
>
>> Il giorno 24.03.2016, alle ore 10:00, parminder <parminder at itforchange.net> ha scritto:
>>
>> International incorporation either follows a new treaty, or can be under the UN....
> Correct.
> And I do believe that either case is far from simple.

No one says we are dealing with simple things here. They are very
complex, certainly.
> Just stating the principle is "ether" - unless it is vested with a practical proposal.
I am happy to give practical proposals, as I have often done, as long as
you promise to tell me what if anything is wrong in it, and the response
does not disappear into the ether :)

I'll try to be brief... Unlike what you say below, and John was arguing,
there is no proposal from my side for any other agency to replace
ICANN's current working. It is supposed to be preserved as it it. I am
not sure why I am unable to make this clear despite stating it
repeatedly. The proposal is just to have immunity from currently
applicable US jurisdiction - executive, legislative and judicial - over
ICANN, which does not change with oversight transition process, and
which is very dangerous and unacceptable to non US people. Such immunity
requires international incorporation of the ICANN, with the
incorporating document clearly, legally, preserving, ICANN's current
mandate and working.... This incorporating document can be in form of a
very brief treaty, laying our and legitimising (in international law)
the mandate and work methods of ICANN (as they are) and further granting
immunity from host country jurisdictions.

The text of such a short treaty document will require to be such that US
would accede to, and it can make sure that ICANN's status quo is
protected... There will be no way to change that status quo - believe
me, there is a rule of law in the international domain - unless US (and
its allies) agrees to such a change. And there is no reason that it
will. Such an arrangement protects the ICANN's global governance role
both from US's unilateral interference (from which it is not protected
right now) and of any other country, including, the very unlikely chance
of all non US countries ganging up because still US will have to agree
to any change..... Now please tell me why and how this arrangement is
not a better protection from any undue interference with ICANN's mandate
and working than the current arrangement whereby (even post transition)
US's judicial, legislative and executive agencies can any time interfere
with ICANN's working? No solution will be perfect, but trade offs
between different kinds have to be assessed, form the point of view of
people worldwide, and not just of the US and its allies.

My article also gave a clear example.... Say, the US pharma industry
brings up a case against an Indian generic drug manufacturer, Sun
Pharma, with the gTLD .SuPha, in a US court alleging that the latter is
compromising its patents in its global generic drug business, a case
which otherwise done not hold either in an Indian court or of those
countries to which SunPharma sells its drugs, and the US court orders
seizure of all US based assets of SunPharma including its gTLD.
Accordingly, the US court orders ICANN to de-notify  .SuPha and the root
server maintainer to remove it from the root file. This is an extremely
likely scenario... I can give a thousand similar examples of various
issues that US gov and US business can have with many entities of other
countries, whereby similar consequences can follow. Is this fair...? Is
such a non democratic system acceptable in this world in the 21st
century? Why should non US actors, people and countries accept such a
system? Do you have any preparation of defence against these very
likely, in fact inevitable scenarios (esp with new gTLDs) ?

In the circumstance, how is an international incorporation for ICANN
with host country immunities not better?

parminder


>
> 1. Under the UN
> OK. Where exactly?
> Which already existing UN organization will extend its current mandate to cover the assignment of Internet domain names, IP addresses and protocol parameters?
> Hint: in the past the ITU had thought to be taking this task, but then its governing body (the Member States) have abandoned the idea.
> These days countries are very sensitive to money matters. Extend the mandate of an UN organization will mean more funding - and you bet their respective governing bodies (General Assembly or General Conference of the Member States) will say "no".
> But you are welcome to launch a proposal and try - but it is not the ICANN community that you need to address, but Member States of an existing UN organization.
> Otherwise, it is "ether".
>
> 2. New Treaty
> OK. What would be the articles? Would it be different from the ICANN Bylaws, and if so what would be the role of the community to endors the change? No "ether" please, just sentences black on white.
> How would you convince the potential signatories (that I would assume would be the member states)? This is a far from trivial task. As I have pointed out in a previous message, the CTBTO is still dormant after more than a decade because the number of countries needed to sign in order to bring the protocol in force has not been reached yet. And we are talking about something sensitive like the ban of nuclear tests, on which the vast majority of the population agrees. Just as a side note, another very critical international treaty is the nuclear non-proliferation treaty. Everybody agrees about non-proliferation of nuclear weapons, right? It is a matter of the paramount importance for the survival of the humanity, right?
> However, some countries did not sign, and are therefore not under the obligation to comply with the treaty. In short, they are free to manufacture nuclear weapons outside any international control.
> Incidentally, India is one of those countries, who have not signed the treaty. Wonder why? 
> Still thinking that this is an easy task?
> Go ahead, and please tell my grand-children when this materializes in something different than blah-blah, or "ether" as you call it.
>
> Cheers, and good luck.
> Roberto