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

parminder parminder at itforchange.net
Sun Mar 27 12:51:04 UTC 2016

On Sunday 27 March 2016 04:57 PM, Roberto Gaetano wrote:
> 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.

Thanks Roberto, that makes it easier for us to move forward.

> You might be surprised to learn that, in theory, I would surely prefer
> international incorporation of ICANN rather than US incorporation. 

That is great. Can we all agree on this and incorporate it in a value
statement. Things move forward like that. Public interest  or civil
society groups - of which I take ALAC to be a site - first agree on such
value statements.   Once such a normative standard is agreed to, it is
never impossible to find the best fit institutional form (knowing that
no solution can be perfect and it can only be better than the others
available - like a US incorporation of ICANN, for in this case - for the
required and given considerations.)

> However,
> it is the practical implementation of an international incorporation of
> ICANN that preserves the current multi-stakeholder model that I believe is
> unfeasible. 
I described a process whereby international incorporation will preserve
the current multistakeholder model, by this model being inscribed
centrally in the very text of a new (brief) treaty. And the US, and
other multistakeholder (MS) model supporting governments, make it a
basic condition for agreeing to the treaty. And since such a treaty can
be overruled or its text changed only with consent of US and other MS
model supporters, it can never happen. This way, what you agree as a
theoretical preference, and thus I think you consider as normatively
much more desirable, can be practically achieved. You have not pointed
to any defect in my proposal. But in doing so please remember that we
can not just go by past experience and we should use all possibilities
of innovative available to us, within practical possibilities. And also
nothing is ever perfect and evaluation should be relative .

> And my question is how do you see this international
> incorporation happening (ByLaws, separation of powers, etc.).

I have mentioned the basic elements above. A simpler option is to do
incorporation with no external oversight, and only internal oversight as
proposed in the final ICANN accountability proposal now. (I myself in
fact prefer an added external oversight, which proposal I will keep
separate for now not to confuse the international incorporation
discussion here. But as my article says, this proposed external
oversight is not to be of governments. If you or others have interest, I
can also share that part separately. But for discussing international
incorporation just forget that part. We go by the currently proposed
internal oversight model and inscribe it in the proposed treaty. )
> In simple words, it is pointless to continuing describing the ethereal
> wonders that this future arrangement will bring: 

Nothing ethereal in the above above. But of course you have to be
looking froward. We have, for instance, been thinking for years how we
will convince countries - all of which are interested in faster economic
growth - to agree to begin reducing emission rates... But the Paris
agreement did make some progress on this. Same thing can be said of
nuclear armament, human rights compliance, SDG goals, and so many other
things. There are forces of global public governance and consensus
making always at work, they work slowly and one must believe in them.
And different actors have different roles in the process. The role of
concerned public interest and civil society groups - what I characterise
ALAC to be - is to be driven by higher values and public interest, be
forward looking, and pro-actively contribute normative and practical
proposals and texts, like for a possible treaty of the kind I have

> 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.
Having followed this issue since the WSIS, I think most member states,
other than the US, are convinced, and would agree within months. The US
will get convinced as it did get convinced to go for the current
oversight transition, after Snowden disclosures, from the pressure of
public opinion - an all important force we normally ignore in our
analyses. But for this pressure to form and build up, public interest
and civil society groups have a big role. But if they just give up any
forward looking proposal as being too difficult, no progress will ever
get made... This is why I appeal to groups like the ALAC and other IG
public interest/ civil society groups to take the initiative in this
regard. Such initiative should always come from these quarters,
governments are too busy with the here and now to do it.


> 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
>> 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

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