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

Wed Mar 30 13:34:41 UTC 2016

Roberto,

Thank you very much for your patience and pedagogy (being based on your 
enormous experience in international organisations on one side, and in 
ICANN and ICANN-making-from-scratch on another side).

The issues "how to create international body without having 
international jurisdiction, is it possible?" and "what would be 
possibles outcomes in case of giving ICANN an absolute power above each 
and every sovereign country, implying outside of each and every 
jurisdiction and constitution" should be given as exercices to every 
group of ICANN newcomers. With presentations by mathematicians (those 
boring persons, able to imagine strange topologies) and by lawyers 
(those boring persons getting white hair or bold head in trying to 
imagine how to draft legal texts in strange topologies).

Kind regards to all,
Elisabeth Porteneuve
veteran of the Internet

Le 29/03/2016 18:21, Roberto Gaetano a écrit :
> Parminder,
> I will only address the questions/answers.
>
> 1. Bylaws
>> 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?
> The problem I see here is that the ICANN Bylaws are drafted giving the
> decisional power to the Board of Directors.
> This will change if we incorporate ICANN as an International Treaty
> organization, because in this case the trustees of the International Treaty
> will be the Member States, and the governing body will be the General
> Assembly (or General Conference) of the Member States.
>
> 2. Governance structure
>> 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.
> You forget that in an International Treaty Organization the governing body
> is always the GA/GC of the Member States (see above).
> Or are you envisaging an International Treaty Organization where the General
> Assembly of the Member States would delegate its powers to a Board that they
> do not have any way to influence?
>
> 3. Judicial system
>  From your long text I understand that you look for something like the ICJ.
> That's a good start. However, unless my information is out of date, this
> requires changes to the scope of the ICJ, that as of today does not discuss
> cases presented by physical nor juridical persons, only governments.
> Maybe we can explore WTO and WIPO - which incidentally are the bodies that
> ICANN uses for arbitration on domain names disputes
>
> 4. The 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
> Not really. But if you have an idea of what it would look like, it will be
> sufficient to have a bullet point list.
> No long speeches about "democracy", just simple sentences.
>> 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
> I have enough experience to tell the difference between "last minute
> discussions" and an engagement.
> Indeed, I would like to have engagement by potential signatories before
> losing time on an initiative that I strongly believe will not stand a chance
> of success, as I believe I have explained.
>
> And this brings me to the answer to your question on why ALAC is not engaged
> on this initiative.
> I do not know about ALAC as a whole, but I can give you my reason for not
> losing time on this.
> Regardless the chances of success, that I believe small (but this is only my
> personal opinion, I might be proven wrong), the main issue is that Internet
> users have other priorities.
> At the meeting in Marrakesh there were new people, participating for the
> first time. This time the majority of newcomers were from Africa, but in
> previous meetings we had newcomers coming in majority from other ICANN
> regions, but their observations and concerns were always the same.
> They talk about accessibility, training, sharing of experiences, cost of
> online presence (including domain name purchase). Next comes security and
> privacy.
> What nobody raises as an issue is the incorporation of ICANN. It seems to
> be, by and large, irrelevant - or at least far less important than problems
> that affect everyday's life of Internet users.
> That's why I am dedicating the little time I have available to these other
> issues.
> As a matter of fact, I believe that I have spent far too much time in this
> conversation, as we can only agree on the fact that we disagree.
> And this will not change, no matter how long we will carry on this
> discussion.
> Cheers,
> R.
>
>
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