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

[Roberto Gaetano]

Parminder,
I think that we have a communication problem.
I have perfectly understood that you do not want to create a new structure
to do what ICANN is doing, you "only" propose to incorporate ICANN in a way
that it takes the shape of an international treaty organization - either an
already existing one or a brand new one. And this incorporation process is
what I am asking you to describe.
You might be surprised to learn that, in theory, I would surely prefer
international incorporation of ICANN rather than US incorporation. However,
it is the practical implementation of an international incorporation of
ICANN that preserves the current multi-stakeholder model that I believe is
unfeasible. And my question is how do you see this international
incorporation happening (ByLaws, separation of powers, etc.).
In simple words, it is pointless to continuing describing the ethereal
wonders that this future arrangement will bring: I want to know how you
would do it in practice, for instance how you convince member states to
create an oversight structure that remains an oversight structure and leaves
the policy making process as is.
Cheers,
R.


> -----Messaggio originale-----
> Da: parminder [mailto:parminder at itforchange.net]
> Inviato: domenica 27 marzo 2016 08:30
> A: Roberto Gaetano
> Cc: Seun Ojedeji; At-Large Worldwide
> Oggetto: Re: [At-Large] Is ICANN's oversight really moving away from the
US
> government?
> 
> 
> 
> 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
>