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

parminder parminder at itforchange.net
Tue Mar 29 14:31:15 UTC 2016

On Sunday 27 March 2016 07:34 PM, Roberto Gaetano wrote:
> Parminder,
> You continue with this vague approach. 

 I am sorry, but IMHO my approach can hardly be criticised as vague.....
I have gone out on a leg and offered much more detail than anyone would
normally do for this kind of a discussion at this stage of maturity of a
proposal and its actual implementation.

> I am not willing to give any "value"
> statement for something that I believe is not feasible
Well , you said that theoretically you prefer international status for
ICANN, and I thought that with this one means that if it were possible
one does prefer it and does, in principle, value it more ... But you
have a right to the best statement of your opinion...

>  - or, worse, that if
> done is worse than the starting situation.

Now, this is what I would call as vague. You dont tell me how is it
worse (you only said, it is impractical, which is entirely a different
thing, no)...
> Therefore, I will drop this conversation unless there are some "real" things
> to discuss, i.e. answers to e.g. the following questions:

Happy to do so. Always. (Try also in turn to answer my questions in my
previous email today where I pose the key governance question behind
this conversation, and give your response to it, and if you have none,
why so. thanks).
> 1) how would draft Bylaws and draft incorporation documents look like (hint:
> they cannot remain "as is" even if the functions that ICANN has to perform
> will be unchanged)
I have proposed that they remain the same. Mrely incorporated in a
treaty now ... There will be minor, non essential, changes in that
incorporation documents would not respond to the Californian non profit
law but to an international legal regime. What is the problem that you
see here?

> 2) what would be the governance structure (hint: now the policy development
> is with the community, US has just the "power" of validating the changes to
> the root, and even that is going to vanish with the IANA Oversight
> Transition - obviously the new model must not give more powers to
> governments than the one that the US has today)

ICANN's working remains exactly as it is now. Its oversight becomes as
decided in the CCWG proposal, that is, an internalised 'ICANN community'
oversight. (I have some issues with it, but for the sake of this
discussion I park them, and am ready to go with exactly as the new
community oversight proposal is.)

> 3) what would be the role of the judicial system, i.e. what court decisions
> would affect ICANN's operations (hint: you are right, now US courts have a
> power that other courts do not have - however, the judicial system in a
> democracy is part of the balance of powers,

Ah, since you mention democracy, you must surely know that it is
democracy only if the judiciary administers laws in making of which all
the affected people participate, which is hardly the case vis a vis US
courts and the global public as the constituency of ICANN. Lets not
abuse the good name of democracy :). (BTW, are you a US citizen, I think
not, right?).. What I am trying to propose is what is so much closer to
democracy. In fact, that is my prime intent.
>  if you delete this power you
> unbalance the system, and create a situation where one level of
> accountability disappears, and the result will be an ICANN that has immunity
> whatever it does - I am sure this is not your intention,

You are very right. In fact that is why I want an external oversight
apart from judicial redress, but certainly judicial redress at the very
least. (I wont go into my external oversight proposal which is of a non
gov and a multi stakeholder nature, bec I dont want to digress from the
'international incorporation' discussion.)

>  so I need to know
> what exactly, and how, you foresee as appeal to a judicial court, maybe the
> International Court of Justice or whatever, where a layman from anywhere in
> the world can appeal an ICANN decision)

Yes, lets discuss that. I have earlier proposed a special digital bench
of the International Court of Justice -- we need to be really innovative
here... We also can try to get around the current situation where only
states can go to the ICJ... Something can be worked through the proposed
treaty in conjunction with amendment to the incorporating treaty of the
ICJ... In any case, ICJ can be asked for advice by any international
org, and this route can be used to get its jurisdiction in. Anyway, here
we need innovative thinking, and it is certainly not beyond the realm of
possibilities. As long as we are not predisposed to despair early. Fadi
has been going around saying that the new independent ICANN (which as I
show is basically not independent but highly subject to various powers
of the US state) is the model for addressing other areas of global
governance. I am horrified to hear this --  US entities doing global
governance!!?? I am not sure why others are not. And this is the horror
that I am trying to address and remove. If indeed the narrative can rise
to the level of completely new ways of global governance, we cannot
despair too easily with innovations within and with respect to currently
working international systems, where, whatever their other faults be,
mercifully, all countries are treated equally, and democratically. I
want my democracy, my right of self determination. I refuse to be
subject to the US laws, jurisdiction and polity, of which I have no part
in constructing.

> 4) what would this "brief" international treaty look like, and which
> countries would be ready to sign it (hint: no ether, a *real* text and a
> *real* statement of commitment from member states of the future
> International Treaty Organization that will be the signature and custodian
> of this International Treaty)
My dear friend, you really want me to write the full  text of the
proposed treaty in this email exchange... I have said enough about what
it would be.. If someone can pay for a small, say a month long, project,
I can produce a perfect text as well :)... But you can see that I have
mentioned all the key elements and these now only need to be filled
in... Actually someone should support such  a project. If one is indeed
interested in diversity if views and possibilities.

And dear, you really want me to first get the signatures of all
countries to a commitment to sign such a treaty!? But if you just want
to get an idea who will sign, just go back to the last minute
discussions of the WSIS docs. Almost every country other than the US
would be ready, within a few months... And the US will have to come
around by the force of global public opinion... Key political changes
take place in this manner... Not first with a full fair text of the
treaty, and signatures of all committed members.... think, for instance,
where we will be with climate negotiations if we had insisted on the
same terms, and that can be said practically for any worthwhile
development in global governance, or governance at any level. You are
putting impossible conditions.

> Maybe others would have more questions in this line.
> Personally, I would not agree to any blank statement of principle without
> concrete answers to the questions above.

I am not making a blank statement of principles. I have been as concrete
as one can be, and more, at this stage of the discussion. And I am ready
to take this discussion towards even more concreteness.
> In absence of this, I remain with my position, which is that international
> incorporation of ICANN, that preserves the current multi-stakeholder model,
> could be desirable in theory but is unfeasible in practice.

thanks for saying again that it is desirable in theory.... Most big
changes begin that way... Although I dont know why you and others in
ALAC are not ready to put that sentiment into a statement and seek its
practical possibilities thereafter. BTW, I must add here --  for people
who consider it practically possible that corporations can begin doing
global governance on an equal footing with governments replacing the
current - relatively - democratic model - which is such a big big
fundamental shift - saying that what I am proposing is not practical
looks extremely strange and out of place to me.

regards, parminder
> Cheers,
> Roberto
>> -----Messaggio originale-----
>> Da: parminder [mailto:parminder at itforchange.net]
>> Inviato: domenica 27 marzo 2016 14:51
>> A: Roberto Gaetano
>> Cc: 'Seun Ojedeji'; 'At-Large Worldwide'
>> Oggetto: Re: R: [At-Large] Is ICANN's oversight really moving away from
> the
>> US government?
>> 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
>> 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 mentioned.
>>> 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.
>> parminder
>>> 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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